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European Centre of Tort and Insurance Law Landesgerichtsstraße 11 A-1080 Vienna Tel.: +43 1 40127 1688 Fax: +43 1 40127 1685 E-Mail:
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ISBN 978-3-211-70937-5 SpringerWienNewYork
This book is dedicated to Sektionschef Hon.-Prof. Dr. Gerhard Hopf on the occasion of his retirement as a sign of our sincere gratitude for all his support for the European Centre of Tort and Insurance Law and the Research Unit for European Tort Law
Preface A harmonisation of European law presupposes sound mutual knowledge of the jurisdictions involved in the harmonisation process. However, partly due to language problems it is not always easy to obtain information about all these jurisdictions, especially as far as new developments are concerned. Against this background, the European Centre of Tort and Insurance Law and the Research Unit for European Tort Law decided to publish a Yearbook on European Tort Law containing reports on the most interesting new developments in the field of tort law in different European countries. The sixth Yearbook on European Tort Law includes reports on most EU Member States, including the new Member States the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia. Contributions from Switzerland and Norway, an overview of the developments in the field of EC law as well as a report on Romanian tort law are also included. Furthermore, the Yearbook contains a comparative overview and several essays on wrongful death. These essays, as well as the most important results of the country reports and the comparative overview, were presented and discussed at the 6th Annual Conference on European Tort Law in Vienna from 12 to 14 April 2007 the opening lecture of which is also published in the present Yearbook. The 7th Annual Conference on European Tort Law will again take place in Vienna from 27 to 29 March 2008. In publishing the Yearbook we pursue the idea of providing a comprehensive overview of the latest developments in the law of torts of many European countries thereby enabling scholars as well as practitioners from different national backgrounds to keep abreast of questions concerning tort law. Furthermore, we hope that the Yearbook will enhance and promote a greater understanding of the respective national legal and judicial systems which is essential for a successful harmonisation of European tort law. At this point, we would like to express our gratitude for the support of this project by the Austrian Ministry of Education, Science and Culture, the Austrian Ministry of Justice, the European Commission, Freshfields Bruckhaus Deringer, the Kulturabteilung der Stadt Wien, Wissenschafts- und Forschungsförderung and Munich Re. Without their support this project could never have been realised. Moreover, we would like to thank the staff of the Research Unit for European Tort Law and the European Centre of Tort and Insurance Law. Special thanks go to Mag. Lisa Zeiler for making the Conference such a success and Donna Stockenhuber M.A. for once again taking on the delicate and time-consuming task of proof-reading the entire manuscript. Moreover, we
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would like to thank Vanessa Wilcox LL.B, LL.M for preparing the Index and Mag. Kathrin Karner-Strobach for unifying the style of the footnotes. Helmut Koziol and Barbara C. Steininger Vienna, July 2007
Table of Contents Opening Lecture............................................................................................. 1 Risks and Uncertainties in the Law of Tort (Herman A. Cousy) .......................................................................................... 2 A. B. C. D.
Risks and Uncertainties ........................................................................ 3 “Pouvoir et Savoir”. Science and Technology ..................................... 7 The Precautionary Principle................................................................. 9 Uncertainties, Precaution and Civil Liability ..................................... 15
Essays on Wrongful Death .......................................................................... 27 I. Wrongful Death – Basic Questions (Helmut Koziol).............................................................................................. 28 II. Wrongful Death and Compensation for Pecuniary Loss (Christiane C. Wendehorst)............................................................................ 35 A. B. C. D. E.
Introduction......................................................................................... 35 Pecuniary Loss Suffered by the Deceased Himself ............................. 36 Pecuniary Loss Suffered by Third Parties ......................................... 38 Critical Evaluation ............................................................................. 49 Concluding Remarks ........................................................................... 51
III. Death and Non-Pecuniary Loss (W.V.H. Rogers) .............................................................................................. 52 IV. Wrongful Death: How Much Does It Cost to Kill Someone? (Bernhard A. Koch) ........................................................................................ 61 Reports .......................................................................................................... 67 I. Austria (Barbara C. Steininger) ................................................................................. 68 A. Legislation .......................................................................................... 68 B. Cases ................................................................................................... 70 C. Literature ............................................................................................ 87
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II. Belgium (Isabelle C. Durant) ....................................................................................... 93 A. Legislation .......................................................................................... 93 B. Cases ................................................................................................... 99 C. Literature .......................................................................................... 117 III. Czech Republic (Jiří Hrádek) ................................................................................................ 123 A. Legislation ........................................................................................ 123 B. Cases ................................................................................................. 130 C. Literature .......................................................................................... 143 IV. Denmark (Vibe Ulfbeck and Søren Bergenser) ............................................................ 146 A. Legislation ........................................................................................ 146 B. Cases ................................................................................................. 147 C. Literature .......................................................................................... 151 V. England and Wales (Ken Oliphant) ............................................................................................. 153 A. Legislation ........................................................................................ 153 B. Cases ................................................................................................. 155 C. Literature .......................................................................................... 173 VI. Estonia (Janno Lahe and Irene Kull) ........................................................................ 178 A. Legislation ........................................................................................ 178 B. Cases ................................................................................................. 180 C. Literature .......................................................................................... 187 VII. Finland (Suvianna Hakalehto-Wainio) ...................................................................... 191 A. Legislation ........................................................................................ 191 B. Cases ................................................................................................. 191 C. Literature .......................................................................................... 194 VIII. France (Olivier Moréteau) ....................................................................................... 196 A. Legislation ........................................................................................ 196 B. Cases ................................................................................................. 199 C. Literature .......................................................................................... 210
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IX. Germany (Jörg Fedtke) ................................................................................................ 213 A. Legislation ........................................................................................ 213 B. Cases ................................................................................................. 216 C. Literature .......................................................................................... 229 X. Greece (Eugenia Dacoronia) ................................................................................... 237 A. Legislation ........................................................................................ 237 B. Cases ................................................................................................. 240 C. Literature .......................................................................................... 262 XI. Hungary (Attila Menyhárd) ......................................................................................... 269 A. Legislation ........................................................................................ 269 B. Cases ................................................................................................. 271 C. Literature .......................................................................................... 278 XII. Ireland (Eoin Quill) .................................................................................................. 281 A. Legislation and Official Reports ....................................................... 281 B. Cases ................................................................................................. 284 C. Literature .......................................................................................... 295 XIII. Italy (Elena Bargelli)............................................................................................ 299 A. Legislation ........................................................................................ 299 B. Cases ................................................................................................. 302 C. Literature .......................................................................................... 310 XIV. Latvia (Agris Bitāns) ............................................................................................... 311 A. Legislation ........................................................................................ 311 B. Cases ................................................................................................. 315 C. Literature .......................................................................................... 318 XV. Lithuania (Herkus Gabartas and Milda Laučienė) ...................................................... 322 A. Legislation ........................................................................................ 322 B. Cases ................................................................................................. 323 C. Literature .......................................................................................... 333
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XVI. The Netherlands (Michael G. Faure and Ton Hartlief) ........................................................... 338 A. B. C. D. E.
Introduction....................................................................................... 338 Legislation and Evolutions at Policy Level ...................................... 339 Case Law........................................................................................... 342 Doctrine ............................................................................................ 354 Concluding Remarks ......................................................................... 359
XVII. Norway (Bjarte Askeland) ......................................................................................... 361 A. Legislation ........................................................................................ 361 B. Cases ................................................................................................. 361 C. Literature .......................................................................................... 367 XVIII. Poland (Ewa Bagińska) ............................................................................................ 373 A. Legislation ........................................................................................ 373 B. Cases ................................................................................................. 374 C. Literature .......................................................................................... 392 XIX. Portugal (André G. Dias Pereira)............................................................................... 394 A. Legislation ........................................................................................ 394 B. Cases ................................................................................................. 399 C. Literature .......................................................................................... 407 XX. Slovakia (Anton Dulak)............................................................................................... 409 A. Legislation ........................................................................................ 409 B. Cases ................................................................................................. 413 C. Literature .......................................................................................... 416 XXI. Slovenia (Rok Lampe) ................................................................................................. 417 A. Legislation ........................................................................................ 417 B. Cases ................................................................................................. 422 C. Literature .......................................................................................... 427 XXII. Spain (Albert Ruda) ............................................................................................... 429 A. Legislation ........................................................................................ 429 B. Cases ................................................................................................. 438 C. Literature .......................................................................................... 450
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XXIII. Sweden (Håkan Andersson) ...................................................................................... 456 A. B. C. D.
Introduction....................................................................................... 456 Legislation ........................................................................................ 456 Cases ................................................................................................. 456 Literature .......................................................................................... 473
XXIV. Switzerland (Peter Loser) ................................................................................................ 474 A. Legislation ........................................................................................ 474 B. Cases ................................................................................................. 478 C. Literature .......................................................................................... 483 XXV. European Union (Bernhard A. Koch) ...................................................................................... 487 A. Legislation and Legislative Projects ................................................. 487 B. Cases ................................................................................................. 489 XXVI. Comparative Remarks (Ken Oliphant) ............................................................................................. 499 A. B. C. D.
Introduction....................................................................................... 499 The State of European Tort Law Scholarship ................................... 499 Developments of Particular Interest ................................................. 502 Areas for Further Research .............................................................. 511
Further Contribution ................................................................................ 515 Romania (Ionut Raduletu) ........................................................................................... 516 A. B. C. D.
Tort Law Framework ........................................................................ 516 Legislation ........................................................................................ 532 Case Law........................................................................................... 535 Literature .......................................................................................... 544
Contributors ............................................................................................... 547 Index ............................................................................................................ 561 Publications ................................................................................................ 572
Opening Lecture
Risks and Uncertainties in the Law of Tort Herman A. Cousy Le principe de précaution est la sagesse de celui qui mesure ses connaissances à l’aune de ses ignorances (Y. Lambert-Faivre)1
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About five years ago I had the honour of opening the Tort Law Conference here in Vienna with a presentation2 on a classical and well-known theme of the law of tort, dealing with the respective place of prevention and compensation among the functions of the law of tort3. Today I would like to present to you some data and thoughts on a concept that is perhaps less known, at least at first sight, i.e. the concept of “uncertainties”, as opposed to the concept of risks, and its relevance for the law of torts. I am aware that the title of this paper is somewhat ambiguous, since it could also be interpreted in the sense that I will deal with a number of issues that so far have not received a clear answer among the specialists of the subject-matter, and that have thus remained “uncertain”. And we all know that there are plenty of them. What I really have in mind is to introduce and comment on the concept of “uncertainty”, used, as I will explain later on, in a very particular sense of being a specific and new kind of an uncertain or say, potential risk4. One of the characteristics of these “uncertain risks” is that they have to be met from an “anticipative” and “precautionary” approach, rather than from an “ex post” reaction. In public law, administrative law and especially in environmental law and safety law, the anticipative approach is well known, thanks to the introduction of the so-called “precautionary principle”. The precautionary principle as a principle of international law and general rule that should govern the attitude of governments, scientists and decision-makers in face of situations of uncertainty, is by now well known and has been extensively discussed. Among tort lawyers our inevitable reaction is to ask for the relevance of the uncertainties for the law of tort. 1
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Y. Lambert-Faivre, Droit du dommage corporel. Systèmes d’indemnisation (3rd ed. 1996) 793, no. 697. H. Cousy, Tort liability and liability insurance. A difficult relationship, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2001 (2002) 18 ff. I will refer to the “law of tort”, and sometimes also to “the law of civil liability”, but without having a clear reason for choosing the one or the other, except that it seems a bit odd to speak of the law of tort while dealing with reference to one of the continental (European) national law systems. Cf. P. Lascoumes, La précaution comme anticipation des risques résiduels et hybridation de la responsabilité, L’Année Sociologique 1996, vol. 46, 359 ff.
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It is this subject matter that I will deal with today, but, as you will come to realise quite soon, the answer to the questions will be often tentative and even uncertain (in the usual sense of the word). So far the law of torts is rather uncertain about how to consider “uncertainties”. In a way I remain in the same general line of thought as the one that I followed in my presentation of five years ago, since today I want to examine again the similar question to what degree the law of tort can also play a prospective role next to the retrospective role that is traditionally assigned to it. Let me start with a citation that comes from a source that may perhaps strike some of you as oddly fitting in the context of a legal theme. The citation is from M. David Rumsfeld, former U.S. Secretary of Defense, who entertained more than one of his audiences with the following quip: “Reports that say something hasn’t happened are interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns – the ones we don’t know we don’t know.”5 The thoughts that I would like to share with you deal with what I consider to be yet another possible segment in the twilight zone between the known and the unknown. I refer to situations where we are not sure whether we know, a situation that occurs when the development of our knowledge is not sufficiently advanced to allow us to know with (scientific) certainty what is the relationship between cause and effect, in other words, a situation where we are unable to discover what, if any, are the new and largely unknown risks that are potentially created by human action or behaviour or way of life. Situations of that kind of uncertainty occur especially, but not exclusively, by the application or use of new highly technological processes and products.
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A. RISKS AND UNCERTAINTIES In a 2005 report on “La responsabilité et la socialisation des risques”6, of the Council of State of France, it is pointed out that one of the reasons why the present day society is considered to be a risk society (“une société de risques”)7 is that the nature of the risks to which modern men are exposed has fundamentally changed in such a manner as to create fear. The report points out that technological evolution and progress itself has become a factor of the risks that we face today. Today even the natural catastrophes like floods and storms and hurricanes 5
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The spoken citation of this quip can be found on http://politicalhumor.about.com/cs/quotethis/a/ Rumsfeldquotes.htm. Conseil d’Etat, Rapport Public 2005. Jurisprudence et avis de 2004. Responsabilité et socialisation du risque (2005). U. Beck, Risikogesellschaft – Auf dem Weg in eine andere Moderne (1996), and some of the comments L. Ferry, De la peur comme nouvelle passion démocratique: vers la « société du risque », Risques. Les Cahiers de l’Assurance 2001, no. 48, December, 72 ff.; D. Kessler, L’ère de la vulnérabilité, Risques. Les Cahiers de l’Assurance 2006, no. 67, September, 104 ff.; J. Morris, Rethinking Risk and the Precautionary Principle (2000).
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are no longer purely due to the unfortunate vicissitudes of nature as is abundantly demonstrated by the consequences of the humanly caused climate change. In addition, there occurs also a modification of the scale of the risks: the ways of production and distribution and our way of life induce risks to be massive in their impact and/or serial in their occurrence, two characteristics that threaten the basic conditions of their insurability. New and typical for the risk society is also the fact that it is being increasingly confronted with uncertain or virtual risks, i.e. risks that are present but manifest themselves only after a certain period of time. Finally there are the so-called potential risks. To clarify this concept, I first refer to the distinction that was put forward in the splendid conference book “Gli Strumenti della precauzione”8, edited by our distinguished colleague and member of the European Group on Tort Law, G. Comandé. In his leading introductory article to this book, Comandé makes a distinction between two sorts of risks, the actual risks on the one hand, the probability of which can be objectively measured (“incertezza oggettivamente probabilizzatta”), and the potential risks, where the uncertainty of which is intrinsic, being the risks of which the objective probability cannot be measured with precise parameters9.
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One of the striking features of the risk society thus appears to be that the very existence of risks themselves is the object of uncertainty and constitutes a risk. I think that the distinction between actual and potential risks corresponds to a very large degree with the distinction that I will use further on in this paper, and that I borrow from an older American economist Frank Knight in a book called “Risk, uncertainty and profit”10. In the “Knightean” distinction between risk and uncertainty, the concept of risk is characterized by the possibility to estimate with precision its probability, and thus by the possibility to be treated as a calculable (and insurable) cost. An uncertainty, on the other hand, must be radically distinguished from a calculable risk since here no scientific method whatsoever permits the measure of it. Contrary to risks, uncertainties cannot be reduced – they are incalculable, uncontrollable and uninsurable11. Such situations of uncertainty occur when the lack of certainty not only concerns the when and where and the frequency and intensity of the feared event, but where no scientific certainty can be obtained about the very existence of the risk itself, in other words, situations 8
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G. Comandé (ed.), Gli Strumenti della precauzione: nuovi rischi, assicurazione e responabilità (2006) 486 pp. G. Comandé, L’assicurazione et la responsabilità civile come instrumenti e veicole del prinzipio di precauzione, in: G. Comandé (ed.), Gli Strumenti della Precauzione (2006) 39 ff. F. Knight, Risk Uncertainty and Profit (1921); Comp. O. Godard/C. Henry/P. Lagadec/E. Michel-Kerwan, Traité des nouveaux risques. Précaution. Crise. Assurance (2002). For a discussion as to whether the meaning that is given nowadays to “risk” and “uncertainty” truly corresponds to what Frank Knight had meant by it, see Ch. Schmidt, Risque et incertitude: une nouvelle interprétation, Risques. Les Cahiers de l’Assurance 1996, January–March, 163 ff. Chr. Gollier, Le risque de développement est-il assurable?, Risques. Les Cahiers de l’assurance 1993, 49; Compare the description of O. Godard, De l’usage du principe de précaution en univers controversé, Futuribles 1999, February–March, 37: “le risque qualifie les situations où le calcul des probabilités objectives est applicable. La notion d’incertitude sert au contraire à qualifier les situations où le résultat d’une action ne peut être prévu avec certitude et ne se prête pas au calcul probabiliste parce qu’il dépend de la réalisation d’événements uniques, non répétitifs, ou parce que ces événements ne sont pas identifiés clairement ex ante”.
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where it is not certain whether a situation, activity or behaviour does or does not create a risk of harm. In the case of an actual risk, we do know that something may happen albeit we do not know when and how. In the hypothesis of an “uncertainty”, the lack of knowledge concerns the very existence of a risk, the risk is indeed only potential, or, so one might say, the risk is one of the second degree in the sense that the risk involved is the chance that there might be a risk. It may be true that when lawyers speak about risk as a ground for civil liability, they do not make the distinction between the risks that are capable of probabilistic calculation and those that are not, in other words between “risks” and “uncertainties”12. However the immense attention that the precautionary principle has managed to attract may change this. An exploration of the changes that the concepts of uncertainty and precaution may introduce in the law of tort, as I will attempt later (see infra, no. 15 ff.), may perhaps contribute to a better understanding and to a distinction between “risks” and “uncertainties” in the law of tort. As was brilliantly explained by François Ewald, situations of uncertainty find their origin in the fact that the present state of advanced scientific development does not allow one to know and predict with scientific certainty the exact sequence of causes and effects in such a way as to enable us to ascertain that activities or behaviour do or do not imply a risk of harm.13 Where one might be inclined to expect that the much praised advance of science and technology should enable scientists to quickly and definitively eliminate uncertainties, the contrary appears to be true and the situations of uncertainty seem to become increasingly frequent. Let me mention some of the best known examples. They should allow us to better visualize the situations that we are referring to: there is the uncertainty about the effect of the use of fossil combustibles like coal and petrol upon the evolution of the delicate layers of the atmosphere; there is the uncertainty about the long term consequences of the use and/or the release into the environment of genetically modified organisms (GOMs); there is the uncertainty about the possible harmful effect of high tension electricity transmission on the living organisms that find themselves living in their vicinity; there is the uncertainty about the long term effects on the human organism of electromagnetic waves like microwaves (as in the case of microwave ovens, portable telephones, etc.); there is the rising concern about the possible effect of nanotechnologies14; there is the uncertain12 13
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G. Martin, Précaution et évolution du droit, Recueil Dalloz Sirey (1995) Chronique (299) 304. F. Ewald, Les limites de la responsabilité et de l’assurabilité, lecture given on October 18, 1994, Chaire de l’Union Professionelle des Entreprises d’Assurances (U.P.E.A.) for the Leuven Centre for Risk and Insurance Studies; Compare F. Ewald, The return of the Crafty Genius: An outline of a Philosophy of Precaution, Connecticut Insurance Law Journal (Conn.Ins.L.J.) 1999–2000, vol. 6 (47) 58 ff., equally published in French as “Le retour du matin génie. Esquisse d’une philosophie de la precaution”, in: O. Godard (ed.), Le principe de précaution dans la conduite des affaires humaines (1997). Nanotechnology is attracting special attention. Cf. L. Breggin/L. Carothers, Governing Uncertainty: The Nanotechnology Environmental, Health and Safety Challenge, Columbia Journal of Environmental Law 2006, vol. 31, 285–330; R.F. Wilson, Nanotechnology: the challenge of regulating known unknowns, Journal of Law, Medicine & Ethics 2006, 704. More generally: G. Van Calster, Regulating Nanotechnology in the European Union, European Environmental Law Review 2006, 238.
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ty about the power of the oceanic fauna and flora to resist the consequences of the massive dumping of waste; there is the uncertainty about the long term or side effects of the use of large numbers of chemical substances in food, drugs, medication, and in other new materials to which man and nature are exposed.
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It may be useful to bring a degree of classification and differentiation in the list of examples that I have just given. Among the situations that were cited, there are a number of them where a rapid recent development of research and scientific insight has turned uncertainties into tragic suspicions and even convictions of reality and truth15. I do not have to recall that until quite recently, there was a lot of scientific disagreement and indeed uncertainty about the reality of climatic change and of the greenhouse effect, and especially about the origins and causes of the phenomenon16. The fact that in some cases a quick transition takes place from uncertainty to a generally accepted risk-perception leads us to another observation that is more problematic because it puts the validity of the basic distinction between risks and uncertainties into question. The observation is that the borderline between risks and uncertainties, between the suspicion of a potential risk on the one hand and the actual risk, is very thin and fluent indeed. However much the distinction may be useful in guiding us to better understand the present day reality and the emergence of new concepts like the precautionary principle, we must readily admit that there is no very clear dividing line between the sphere of risk and that of uncertainty and that we are rather dealing with a gradual transition between the doubtful and the scientifically known unknown. At the very least this observation must lead us to a reservation with respect to the position of these uncertainties in the law of torts: no radical and clear-cut legal consequences can be linked to the classification of certain dangers under the category of known risks and the category of potential risks. A second differentiation differentiates between those cases where the uncertainty relates to, on the one hand, situations that may lead to catastrophic, or even planetary consequences and that threaten the very existence or well-being of humanity and/or of the entire planet, and on the other hand, the situations where the uncertain danger only threatens individual victims, be they numerous in numbers. Global warming, uncontrolled spread of artificial man-made genetic or atomic or subatomic mutations are examples of the first category. They present the tragic characteristic that they are mostly caused by globally widespread collective behaviour and lifestyle. They are difficult to control and even more difficult to change, while at the same time being dangers of such seriousness that humanity simply cannot permit itself to make the wrong choice. We are dealing with potential tragedies here. The approach to the solution, if there is any solution, must be versed in terms of catastrophe thinking, an approach of which I shall want to say a few words later (see infra no. 10). But not 15
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About the possible progressive, be it partial, solution of some uncertainties thanks to advancing scientific insight, see C. Gollier/B. Julien/N. Treich, Scientific progress and irreversibility: an economic interpretation of the “Precautionary Principle”, Journal of Public Economics 2000, vol. 75, 229 ff. In his 1994 lecture (see fn. 13) Ewald was mentioning the greenhouse effect as an example of an uncertainty, and, at that time, rightly so.
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all situations of uncertainty lead to such global threats and there are also many other circumstances where choices must be made under scientific uncertainty, where these choices can be made and are made by identifiable decision-makers, like public authorities, producers, scientists, and where the consequences have an impact on the life and well-being of identifiable individuals. These situations of uncertainty have always existed and are not necessarily linked to the catastrophic impact of new technologies. Also judges have been confronted with such situations, also in tort liability cases. It may be that because of the growing attention to the catastrophic scenarios, the attention to the confrontation between “uncertainty situations” and the law has now to become more explicit and more focused. I shall come back to this distinction while talking about the place of uncertainties in the law of torts and referring to the distinction between macro- and micro-precaution (see infra no. 15).
B. “POUVOIR ET SAVOIR”. SCIENCE AND TECHNOLOGY All the examples given demonstrate that scientific uncertainty about the relation of cause and effect does not prevent man and society from developing and applying all sorts of old and especially new “technologies”, in spite of the absence of sufficient knowledge about their long term safety. A remarkable conclusion to be drawn from this is that the development of new technologies and the advance of scientific insight are not necessarily synchronous in the sense that they do not always keep the same pace. The discrepancy is such that it is the scientific insight into the reality of risks and dangers, emanating from the introduction of certain new technologies that appears to often be lagging behind. The concept of “uncertainty” has something to do with the insufficient development of our knowledge, more specifically with the state of advancement of our scientific knowledge. We are used to speaking of “der Stand von Wissenschaft und Technik” in one single breath, but at a closer look it would appear that in reality a discrepancy exists between the state of advancement of technique and science, between what we are able to achieve at a practical level, and what we know, at a scientific level, about the long term effects and dangers of such practices, or in the words of Francois Ewald, between our “savoir” and our “pouvoir”. We live in a phase of history where we can do more (pouvoir) than we know (savoir). We are able to achieve practical results, like heating up or cooling down our houses and our cars, but we do not possess the adequate scientific knowledge to evaluate the dangers of our methods. We can grow wheat or vegetables that are frost resistant but have no knowledge about the long term effect of the genetic modification techniques that allow us to do so. The history of science teaches us that such situations of discrepancy between practical knowledge and the state of scientific insight are not unique and typical to our time, but that they do occur and have occurred at regular intervals in time in our Western society. Whenever, for a variety of reasons and causes, the practical circumstances of life are undergoing major changes and
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do move forward at such a pace and rhythm, the chance exists that the conventional theoretical knowledge is not keeping pace in its advancements to be able to adequately accompany those circumstances and to inspire confidence. A brief look at history teaches us that there appears to exist a sort of alternation between periods where “pouvoir” and “savoir” are synchronically developing and those where a discrepancy arises. By the same token, an alternation occurs between, on the one hand, those periods of complete trust in the prevailing picture of world and man and where society is confident in possessing sufficient scientific knowledge and insight to master the dangers of the material circumstances and the threats that emanate from it, and, on the other hand, those periods where a tension appears between practical experience and needs and the theoretical image and scientific knowledge of the surrounding world. In these last situations there is a discrepancy between two levels of knowledge.
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Jean-Jacques Salomon17 and more specifically his seminal article in Futuribles is our guide. Already in the Aristotelian philosophy a distinction is made between the immovable and perfect knowledge (the Greek “sofia”, later in the Middle Ages, the Latin “sapientia”) and the more contingent and practical knowledge that governs the activity of men and which takes into account the changing circumstances of life (in the Greek language: “phronesis”). It would take until the end of the “dark ages” before the Renaissance would witness the resurgence of the attitude of prudence as a prime virtue to be pursued in face of the uncertainties of life. Dealing with the attitude of the Renaissance-man vis-à-vis the uncertainties of existence, Granbattista Vico praises the baroque virtue of the humanistic “prudentia”, while opposing it to the cold and abstract approach of mathematics and logic of Galilei, Descartes and Newton, who know only one single value, truth, commanded by the “natura rerum”18. In the enlightened days of the eighteenth century “savoir” and “pouvoir” are considered to coincide: indeed science is power, (“savoir est pouvoir”). The Age of Enlightenment will consider prudentia as a silly virtue, “une sotte vertu”, as a despicable attitude that gives too much attention to the human will considered arbitrary and contingent. If the twentieth century may have been witness of a blind confidence in scientific progress, the post-industrial period witnessed a rapid era transition into a period of distrust towards the prevailing “acquis scientifique”. Whereas the philosophy of positivism and the undeniable success of the scientific advancement had led men to believe in a model where uncertainty could be eliminated, the “fin de siècle” of the twentieth century confronted Western society, and indeed the global world, with a great return, and a new divorce between science and the world of life19. 17
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J.-J. Salomon, Pour une éthique de la science, Futuribles 1999, vol. 5, 10. This article is an excerpt from chap. 9 “Prudence et précaution” in the book J.-J. Salomon, Survivre à la science. Une certaine idée du futur (1999). About G. Vico, see T. Hart, Recht en Staat in het denken van Giambattista Vico (1979) 59 ff.; one can compare the distinction with the one made by Pascal between the “esprit géometrique” and the “esprit de finesse”. J.-J. Salomon refers in this context to an undercurrent that is very much present in contemporary philosophy, like in E. Husserl, La crise des sciences européennes et la phénoménologie transcendente (Gallimard 1993) or in H. Arendt, La condition de l’homme moderne (1961).
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In the post-industrial era, the need is felt for a practical wisdom that teaches men how to behave in a situation and environment of uncertainty. Today the uncertainties of life are not only due to the unpredictable dangers of nature and to the exogenous “natural catastrophes”, but they are also, and even more, due to the unknown and uncertain risks that are created by the (faster than ever) growing and progressing technologies. Once again the need is felt for some kind of practical knowledge and prudence that allows people to cope with the unknown and especially the uncertain and the new prudence that is needed in a situation of scientific uncertainty is exactly the “precaution”. The attitude of precaution is the “nova prudentia” that man in the twenty first century needs in the situation of new uncertainty, i.e. the scientific uncertainty. This new prudence is conscious that not all that is achievable is also advisable
C. THE PRECAUTIONARY PRINCIPLE 1. The Precautionary Principle: Origins, Success, Criticism This brings us to the introduction into the debate of the (in)famous “precautionary principle” (“le principe de précaution”, das “Vorsorgeprinzip”, “prinzipio di precauzione”). I am not aware of any rule or legal principle that has known such an astonishing career and success and that has generated such an amount of literature in such a short time; that has so easily made its way into so many different international and supranational texts and treaties; that has been cited over and over again as a sacred tantric rite and that has been used, over-used, abused and probably misused, by giving it differing interpretations, that must serve to make radically opposite policy goals come true20. The principle of precaution has had the success of fashion21, has almost acquired the status of a fetish and there may very well be something like a club or society of commentators of the precautionary principle, which has more or less an occult and secretive character, for the very simple reason that few people do exactly know what it means, although the principle is the expression of fundamental popular wisdom and good sense, the principle being the “high brow” translation of the basic “better safe than sorry” rule22. 20
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The literature is (remarkably) mainly French but enormous. I limit myself to mentioning a few of the highlights; Ph. Kourilsky/G. Viney, Le principe de précaution, Rapport au Premier Ministre 2000; F. Ewald, Philosophie politique du principe de précaution, in: F. Ewald/C. Gollier/N. de Sadeleer, Le principe de précaution (Que sais-je? puf) (2001) 1–44; O. Godard (ed.), Le Principe de précaution dans la conduite des affaires humaines (1997); N. de Saedeleer, Les principes du pollueur-payeur, de prévention et de précaution (1999); Communication of Commission of the European Union on the precautionary principle, COM (2000) 1; Godard/Henry/ Lagadec/Michel-Kerwan (fn. 10); Ewald, Conn.Ins.L.J. 1999–2000, 47; Morris (fn. 7). Comp. Lambert-Faivre (fn. 1) 792: “Le principe de précaution est la nouvelle référence d’éthique juridique à la mode”. For a critical approach: C. Sunstein, Preferences and Rational Choice: New Perspectives and Legal Implications: Beyond the Precautionary Principle, University of Pennsylvania Law Review (U.Pa.L.Rev.) 2003, vol. 151, 1013 ff.; J.B. Wiener, Whose precaution after all? A comment on the comparison and evolution of risk regulatory systems, Duke Journal of Comparative and International Law 2003, vol. 13, 207 ff.
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I shall not dwell long on the precautionary principle, and not remind you of its early rise in German environmental law (“Vorsorgepflicht” in face of the alarming phenomenon of the “Waldsterben”)23. I will neither repeat to you the breakthrough of the precautionary principle in the area of the international law of environmental protection, like in the 1992 declaration of Rio de Janeiro summit, nor its rapid evolution from slogan to a principle or rule of European and international law24 and aside from that, to an expression of planetary wisdom, a new kind of prudence, a political maxim and a technique of government and decision-making25. I will not dwell on its being mentioned in numerous international conventions and national legislations, especially in art. 174 Rome Treaty since the 1992 modification by the Treaty of Maastricht, nor its use by the Court of First Instance in Luxembourg, and its spreading out from environmental matters, to the domain of health, medicine and food safety, I will not expand on its delicate relationship to the great move towards liberalisation of world trade26. But I do want to and must tell you a word about the fundamental philosophy of precaution by pointing out the substantive novelty and about the peculiar nature of the general principle by insisting on its procedural novelty and above all on the “Janus face” of the principle, by which I mean its capacity of a dual interpretation, i.e. in two quite different, in fact almost opposite directions (and thus insist on its ambiguity).
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Before doing so however, I want to briefly draw attention to a far more serious and fundamental criticism of the “principe de précaution” that was raised by the French philosopher, Jean Dupuy, in his book Pour un catastrophisme éclairé: quand l’impossible est certain27. Jean-Pierre Dupuy argues that the precautionary principle is self-contradictory for the very simple reason that if one is uncertain about the existence of a serious and irreversible danger, one cannot know whether there is actually a situation of uncertainty28. In addition the precautionary principle implies that one is aware of an uncertainty (the known unknown), but the real problem lies in situations where one does not know that one does not know (the unknown unknown)29. 23
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Cf. the somewhat older but equally extensive literature on the “Vorsorgeprinzip” in German environmental law. Inter alia: K. von Moltke, The Vorsorgeprinzip in West German Environmental Policy, Institute for environmental policy, 1987; F. Ossenbühl, Vorsorge als Rechtsprinzip im Gesundheits-, Arbeits- und Umweltschutz, Zeitschrift für Verwaltungsrecht 3 (1986) 161 ff. Cf. N. de Saedeleer, Le statut juridique du principe de précaution en droit communautaire: du slogan à la règle, Revue trimestrielle de Droit Européen (RTD eur) 2001, 96, no. 41. Compare Ewald (fn. 20) 30 ff. E. Vos, Mondialisation et régulation. Cadre des marchés – Le principe de précaution et le droit alimentaire de l’Union Européenne, Revue Internationale de droit économique (RIDE) 2002, 2, vol. XVI, 219 ff. Published in Paris, Ed. Seuil, 2002. The unknown unknown situations are of course still more problematic, but about these of course, little can be said and even less done; B. Delannoy, Tenir l’impossible pour certain, Futuribles 2003, 54: “Le présupposé de la loi Barnier est qu’il y a incertitude quand on sait qu’il y a incertitude. Or, le cas vraiment incertain, c’est évidemment qu’on ne sait pas qu’on ne sait pas”. Cf. ibid., 54: “… le cas vraiment incertain, c’est évidemment lorsqu’on ne sait pas qu’on ne sait pas”.
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Anyway Jean Dupuy is sceptical about the question whether there is really such a thing as uncertainty about catastrophic scenarios. In the technological society there is no such thing as a catastrophic threat that is uncertain. The possibility that catastrophes may arise is no less unknown, so Dupuy argues, than 9/11 was. The right attitude to fight catastrophic threats is not the attitude of precaution but the attitude that aims at making the threat credible. Such result shall be achieved by assuming that it is certain that the catastrophe will take place. “Il faut tenir l’impossible pour certain”: one shall assume that the impossible will indeed take place. “The more people have means to prevent and avoid a risk, the more the belief in the reality of the existence of the risk: that is what invites one to take preventive action”30. 2. The Principle: Substance and Form A very brief excursion into the origins and theoretical foundations of the principle of precaution will prove its substantive novelty. As is well known, the principle of precaution found its origin in environmental law, where the principle was the expression of a new model and philosophy. Nicolas De Saedeleer pointed out how the law of environmental impairment has developed from a “curative” model in the nineteenth century, through a predominantly “preventive” model in the late twentieth century, into a new model for the twenty-first century which is based on anticipation31. The curative model that was prevailing in the nineteenth century starts, on the one hand, from the premise that nature has an unlimited capacity of regeneration and, on the other hand, from the vision that environmental impairment is primarily seen as a violation of property rights. The violation of these rights leads to compensation, by use of the existing law of tort, rather than to restoration of the environmental impairment (F: réparation), the underlying assumption being that nature itself is taking care of that. The preventive model of the twentieth century is based on the newly acquired insight that not all environmental damage is reparable, and that it is therefore better to prevent than to cure environmental harm. In addition, the idea has emerged that such task is one for the public authorities, who must take preventive measures through regulation and administrative procedures (by the way, a view that has found its way into the environmental liability directive)32. The underlying assumption of all this is of course that prevention can be effective, and this presumption is based on the confidence that is put into the validity of scientific insight that perfectly allows intervention in the sequence of events at the right time and place. At the outset of the new century (and millennium), the validity of such insight is questioned and doubted. In the light of the prevailing uncertainty, the 30
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J.-P. Dupuy refers to the effect of paradox of the prophecies. Jahweh orders the prophet Jonas to predict the fall of the city of Ninive. When Jonas (finally, after hesitation) does predict the fall to the Niniveans, they repent, and the city is saved. The paradox is that by assuming that the prophecy is correct, and that the city will be destroyed, the city is saved. N. de Saedeleer, Les principes du pollueur, de prévention et de précaution. Essai sur la genèse et la protée juridique de quelques principes du droit de l’environnement (1990) 225 ff. Directive 2004/35/CE of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, OJ L 143, 30.4.2004, 56–75.
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model cannot be one of prevention and the attitude must be one of anticipation. Under an anticipatory approach, the need is felt to fight dangers by preventing them from arising. The idea is that the feared danger is of such a nature that one has necessarily to be ahead of it and is well expressed in the German concepts of “Gefahrenabwehr” and “Risikovorsorge”33. Or, in the words of Ian Illich, after “la prévoyance” and “la prevention” comes now “la precaution” as a method to manage uncertainty. Prevention and precaution are different from each other. As N. De Saedeleer wrote, if it may be true that precaution can be in the prolongation of prevention, precaution is nevertheless much more than a prolongation of it34. Or in the words of Jean-Jacques Salomon: “La précaution est la figure contemporaine de la prudence en tant qu’elle se confronte à une situation scientifique d’incertitude”35. If I am allowed to cite F. Ewald once more, anticipation is a preventive measure that takes into account that we do not know precisely how much damage the environment can tolerate. Precaution relates to uncertainty as prevention relates to risk.
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After this very brief look at the theoretical foundations of the principle, let us now turn to some of the procedural aspects of the principle of precaution and comment on its openness and vagueness36. The principle of precaution is formulated as an open principle, which means that the actual contents of the principle have to be filled in on a case by case basis37. In its most common formulation, the precautionary principle does not prescribe a precise line of conduct, but limits itself, like a Kantian maxim would do, to proclaim the requirements that must be met by any precise and actual rule of conduct. A side effect of this “open” nature of the principle of precaution is that the principle is interpreted in many different, even opposite senses. The most striking and probably most important and practical aspect of the principle is probably its capability to justify different and opposite lines of thought and of policy. One face of the principle distrusts and rejects all technological innovation, being a priori suspected of constituting a threat to sustainable development. The principle is understood to demand that, in the absence of scientific certainty about the safety of an intended activity, one should refrain from engaging in it. The attitude toward innovation is one of abstinence. The formulation is well known in popular wisdom and daily expressions like “en cas de doute, abstiens toi”, “better safe than sorry”, or “zero” development. But the very same principle shows another face and is then formulated as an argument, as an excuse, to achieve exactly the opposite result, i.e. to make technological innovation development possible, and to render the potential risks that are linked to it, acceptable given the general feeling that in spite of a 33
34 35 36
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H. Cousy, A propos de la notion de précaution, Risques. Les cahiers de l’Assurance 1995, 149 ff.; id., The precautionary principle, a status question, The Geneva Papers on Risk and Insurance 1996, 158 ff. De Saedeleer (fn. 31) 225 ff. Salomon, Futuribles 1999, September, 13. N. de Saedeleer, Le statut juridique du principe de précaution, in: F. Ewald/C. Gollier/N. de Sadeleer, Le principe de précaution (Que sais-je? puf) (2001) 75–103. H. Cousy, Le principe de précaution et ses relations avec le droit des assurances, in: Mélanges offerts à Marcel Fontaine (2003) 681, 686.
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given distrust toward technological innovation, society cannot permit itself to abandon its benefits. The principle expresses a new perception of the acceptability of risks, a positive and active attitude instead of one of inaction and surrender. The sloganesque translation of this interpretation is then “dans le doute, mets tout en oeuvre pour agir au mieux”. 3. The “Ten Commandments” of Precaution A striking illustration of this last interpretation is found in the famous book Le principe de précaution38 that was written by the French professors Philip Kourilsky and Geneviève Viney, and ordered by the French Prime Minister at that time, Lionel Jospin, in the course of the endeavours of the French government confronted at that time with a series of events like the contaminated blood cases. In Viney and Kourilsky’s approach, the principle of precaution is the attitude that each person who takes a decision about an activity that carries a serious and irreversible danger for present and future generations and for nature must take. The principle is especially directed at public authorities, who have the task of protecting the health, the safety of man, and the free circulation of goods. The principle commands one take all measures that make it possible to discover and evaluate the risk at a cost that is economically and socially acceptable and to reduce it to an acceptable level and, if possible, to eliminate it, and to inform the involved persons and to collect the suggestions on the measures to be taken. These precautionary measures must be proportionate to the importance of the risk and be changeable at every moment39. Viney and Kourilsky go so far as to turn this into a practical guide under the “template” of the ten commandments of precaution40. In our own translation: I. Every risk shall be defined, evaluated and classified; II. The risk analysis shall compare the different courses of action and non-action; III. Each risk analysis shall include an economic analysis leading to a cost-benefit analysis (in the broad sense) preceding the decision-making; IV. The risk evaluation structures shall be independent but coordinated; V. As far as possible, decisions can be revised and the solutions adopted shall be reversible and proportional; VI. The way out of uncertainty imposes an obligation to do research; VII. Decisionmaking processes and safety measures shall be appropriate, but coherent and 38 39
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Kourilsky/Viney (fn. 20). It is worthwhile to study with some care the formulation to which Kourilsky and Viney come by way of conclusion (Le principe de précaution), “Le principe de précaution définit l’attitude que doit observer toute personne qui prend une décision concernant une activité dont on peut raisonnablement supposer qu’elle comporte un danger grave pour la santé ou la sécurité des générations actuelles ou futures, ou pour l’environnement. Il s’impose spécialement aux pouvoirs publics qui doivent faire prévaloir les impératifs de santé et de sécurité sur la liberté des échanges entre particuliers et entre Etats. Il commande de prendre toutes les dispositions permettant, pour un coût économiquement et socialement supportable, de détecter et d’évaluer le risque, de le réduire à un niveau acceptable et, si possible, de l’éliminer, d’en informer les personnes concernées et de recueillir leurs suggestions sur les mesures envisagées pour le traiter. Ce dispositif de précaution doit être proportionné à l’ampleur du risque et peut être à tout moment révisé”. Kourilsky/Viney (fn. 20) 56.
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efficacious; VIII. These processes and measures shall be reliable; IX. Evaluations, decisions and then follow-up, and the processes that are applied, shall be transparent, which implies labelling and traceability; X. the public shall be informed as far as possible and its degree of participation adjusted by the political power. In this approach the principle of precaution becomes a method of making decisions under uncertainty and a tool for decision-makers to make difficult decisions in situations of scientific uncertainty. Governments and politicians are confronted with the challenging task of having to carry out two almost opposite tasks, since they have, on the one hand, to convince the population of the seriousness of the potential threats of risk and thus to encourage utmost precaution and, on the other hand, to try to stimulate and encourage technological innovation by creating confidence. Expressed otherwise, one could say that there are two approaches to the situations of potential risks of grave and irreversible danger. There is, on the one hand, the ethical reaction of abstinence, finding its philosophical basis in the philosophy of sustainable development and the responsibility of society vis-à-vis future generations, as forcefully expressed in the well-known, “Verantwortungsprinzip” of Hans Jonas41. The other approach starts from a different view of the need for technological development, considered a priori as beneficial to human development. The challenge is here seen as one of a technical rather than of an ethical nature, of the same order as those that are solved on the basis of game theory. 4. Two Levels of Precaution
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There is a last aspect of the precautionary principle that needs to be briefly mentioned, which is of particular relevance from a legal point of view, and this aspect concerns the nature of the potential risks, the level of the precaution to be observed and the identification of the addressees of the principle. The Kourilsky-Viney treatise makes a distinction between simply plausible potential risks that are only supported by suspicions, and those of which the plausibility is supported by the experience that indicates a critical border may be crossed42. Another distinction which does not necessarily coincide with the previous one is based on the nature and the level of damage and harm that may result from a worst case scenario. One distinguishes between “the macroprecaution of sustainable development”, while referring to the risks that endanger the planet and the survival of man and nature, and what one might call the “micro-precaution” of decision-making under uncertainty. When decisionmaking under uncertainty relates to the health of man and to the safety of the food chain and of medical products and treatments, the precautionary principle should apply, although the survival of the planet is perhaps not at stake. In these cases of micro-precaution, the addressees of the principle are not only politicians, but also public authorities (like judges and, in particular, administrative 41
42
H. Jonas, Das Prinzip Verantwortung (1979). In the French translation of Ewald (fn. 20) 35: “Agis de façon que les effets de ton action soient compatibles avec la permanence d’une vie authentiquement humaine sur la terre”. Kourilsky/Viney (fn. 20) 42.
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judges who have to decide upon the authorization to engage in potentially risky behaviour or activities), and agencies and private decision-makers including producers, medical practitioners and even scientists. Although here again the distinctions may be unclear, they may be useful, especially in a private law context, when it comes to dealing with issues of liability (as we will do hereafter), or with the issues of insurance43. A particularly eloquent expression of the reductionist interpretation of the importance of the principle of precaution for daily legal practice was given by our colleague Luc Mayaux while applying the principle to the context of insurance44: “Non il n’est pas vrai que le principe de précaution ne s’impose qu’aux pouvoirs publics et qu’il ne fait naître aucune obligation à la charge des particuliers! Il n’est pas vrai non plus qu’il se cantonne à quelques domaines particulièrement sensibles: l’environnement, la sécurité alimentaire ou les biotechnologies (…). Au plan conceptuel enfin, il n’est pas vrai que le principe se réduit à l’obligation de minimiser les conséquences d’un risque de développement et serait donc statistiquement aussi rare que ce dernier. Le principe de précaution naît des l’instant qu’il y a doute (…). Sans vouloir inquiéter autre mesure les entreprises et leurs assureurs, on dira volontiers que le principe de précaution est partout et pour tous”45. We believe that there are indeed different levels of uncertainty, with different levels of potential danger and different addressees, and that it is true that the precaution idea may play its specific roles at each of the levels. Without attaching any decisive value to it, and for practical reasons, we will limit the differentiation to macro-and microprecaution, a distinction that refers to the precaution of the collectively caused potentially planet-endangering cases of collective patterns of behaviour, and the cases of potential harm caused by identifiable authors, acting under uncertainty.
D. UNCERTAINTIES, PRECAUTION AND CIVIL LIABILITY 1. General And so we come to the central question of this presentation that deals with the possible relevance of the concept of uncertainty and of the principle of precaution to the law of civil liability. The relevance issue has been answered in very diverging directions. Roughly speaking three groups of answers can be distinguished. There are 43 44
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As I did in Cousy (fn. 37) 681. L. Mayaux, Reflexions sur le principe de précaution et le droit des assurances, Revue Générale de Droit des Assurances (RGDA) 2002, 270 ff. Translation: “It is not true that the precautionary principle is only addressed to public authorities and that it does not create any obligation for private persons! It is neither true that the principle limits itself to certain particular sensitive areas (the environment, food safety and nanotechnologies), (...). At the conceptual level like, it is not true that the principle limits itself to the obligation to minimize the consequences of a development risk and would therefore statistically occur as rarely as this one. The precautionary principle applies from the moment that there is a doubt (...). Without wanting to utterly alarm the undertakings and their insurers, one must admit that the precautionary principle is everywhere and concerns everybody.”
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those who pretend that the precautionary principle has nothing to do with tort liability, since both deal with basically different issues and look in different directions. But there are also those who claim that precaution has very much to do with the law of tort and that the precautionary principle is a new basic principle of liability law or at least profoundly affects the traditional concepts like fault and “risks”. Finally there are many who take some intermediary position, stating that the principle of precaution may have an influence on the existing concepts and categories of the law of tort. I will try to describe these positions and views in somewhat more detail but generally speaking, I am personally inclined to think that the first position is right, at least if the concept of precaution is taken in its original (and true) sense of the attitude to be upheld in situations where there is a threat of grave and irreversible danger, especially in situations where this danger threatens the well-being of future generations. In this context I refer to the Ewaldian distinction between macro-precaution that deals with the anticipation of catastrophic scenarios (and with which tort law has very little to do) and the more frequent micro-precaution scenarios, being the kind of prudence that any decision-maker has to apply while facing situations of doubt and uncertainty. Here it may very well be that the precautionary philosophy is able to exert an influence, in the sense of enriching or broadening or refining the existing tools and concepts (like the concept of fault, the causal connection and the concept of repairable damage, etc.).46 Catastrophic scenarios and “macro-precaution” fall under the realm of “social responsibility”, whereas accidents are in the domain of “civil liability”. In the striking language of François Ewald, the macro-precaution hypothesis deals with “l’irréparable, l’irremédiable, l’incompensable, l’impardonable, l’imprescriptible”. In this kind of scenario, there is no room for any possibility of compensation, there is only room for anticipation. Another distinction that may be of use here is one that is borrowed from some American literature where a distinction is made between general causality and specific causality, the first dealing with the question whether a certain activity or behaviour causes a certain type of damage, the second dealing with the question whether the damage suffered by the victim can be traced back to a given actor or tortfeasor. As will be repeated hereafter, the law of tort is well familiar with issues of uncertain causality as a problem of specific causality47. The precautionary principle is mostly used and thought of in a context of scientific uncertainty about general causality. The question is whether the law of tort could not learn from and even be influenced by the present day increased attention to the situations of scientific uncertainty. It has been rightly said that the law of torts has long been blind to “scientific uncertainty” and to the way in which undertak-
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See in this sense G. Schamps, Het voorzorgsbeginsel in het aansprakelijkheidsrecht: naar een nieuwe grondslag voor burgerlijke aansprakelijkheid in het Belgisch recht, in: E. Vos/G. Van Calster (red.), Risico en voorzorg in de rechtsmaatschappij (2004) 171 ff. See especially art. 3.102 (on proportional liability), 3.103 (alternative causes), 3.104 (potential causes) and 3.105 (uncertain causes in the victim’s sphere). For comments and explanations, see European Group on Tort Law, Principles of European Tort Law, Text and Commentary (2005) 46–59.
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ings have behaved vis-à-vis such situations.48 Ours is a “plaidoyer” in favour of opening the eyes of the law of tort for the way in which the precautionary principle, or more generally the precautionary philosophy and approach has. 2. All-or-nothing But before examining this in more detail, let us first turn back to our brief overview of the diverging answers that have been given to the questions about the relationship between the precautionary philosophy and the law of torts and start a short description of the extreme position of those claiming the absence of any relevance whatsoever. Several arguments are advanced49. This line of thought stresses the point that the precautionary principle is entirely fitting in a logic of anticipation and not in any logic of restoration or compensation of damage. The precautionary principle aims at avoiding the risk before it can even arise, whereas the system of tort liability enters into operation after the loss has occurred to allocate the economic impact of the loss. Precaution looks at the vulnerable person, liability looks at the damage. In addition, the “precautionary liability” deals with the threats of “grave and irreversible” harm whereas compensation supposes the reversibility of a situation. Not only does precaution not fit into a logic of compensation, neither is precaution apt at establishing a causal imputation of acts, as a system of liability would. Those who might be tempted to see a link between the law of civil liability (“responsabilité civile” as it is called in French), and the “principle of responsibility”, das “Verantwortungsprinzip” of Hans Jonas (see supra no. 13), are mistaken. Jonas’ principle of responsibility is based on the observation that, because of technological development, the survival of the biosphere is entirely in the hands of man. Because he possesses the power to destroy the continuation of human life, man is responsible toward future generations for its continuation. Such a responsibility is not based on “imputation” and is neither intended nor aimed at identifying the author of an action, but the Jonas principle is an ethical one that serves to determine what should be done and how mankind should behave50. The idea of precaution fits in a dynamic perspective where insights change along with the development and progress of science. Civil liability is static in the sense that judgment is given on a situation that has occurred in the past, taking into account the state of science and technology that existed at that time.51 Civil liability relates to the behaviour of an individual whereas precaution rather deals with collective attitudes and decisions. In civil liability disputes, 48
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Comp. W.E. Wagner, Choosing ignorance in the manufacture of toxic torts, Cornell Law Review 1997, 838 ff., (also cited by S. Lierman, Voorzorg, preventie en aansprakelijkheid (2004) 434). See also B. Dubuisson, Regards croisés sur le principe de précaution, Special issue: Regards sur le droit d’urbanisme et de l’environnement au tournant du millénaire, Aménagement – Environnement (Amén.-Env.) 2000, 17 ff. Cf. A. Guegan, L’apport du principe de précaution à la responsabilité civile, Revue Juridique de l’environnement (R.J.E.) 2 (2000) 148 ff. Dubuisson, Amén.-Env. 2000, 17.
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decisions about causal connections are largely made on the basis of expertise. Typical for situations of uncertainty, on the other hand, is the impossibility to rely on any available expertise or on a given body of knowledge52. From a precautionary perspective, the traditional “cost benefit analysis” of preventive action cannot be made. In cases of scientific uncertainty, decision-making is taken away from experts and judges and left to politicians, their typical task consisting precisely in making decisions in uncertain and complex situations, based on value judgments and surrounded by safeguarding procedures.
17
At the other end of the spectrum are those who claim that the precautionary principle may be very relevant indeed for the law of civil liability. Could the precautionary principle be considered as a basis for reinforcing the doctrine of strict liability? The idea has been upheld on the basis of the distinction between preventive measures and precautionary measures. As was explained above, preventive measures are those that can and must be taken in the face of a risk that is known, calculable and avoidable. Precaution is the attitude of prudence that must be adopted in situations where prevention does not make sense because of the uncertainty about cause and effect, in other words in situations of “uncertainty”. The ultimate and, according to some, the only effective precautionary attitude that must be adopted in the face of a situation of uncertainty is the zero attitude of not engaging in the uncertain activity at all. Strict liability, it is widely and commonly accepted, is imposed for setting up an abnormally dangerous activity, i.e. an activity which presents a risk of damage even when all due care is exercised in its management. Strict liability is, in other words, the liability one incurs for having engaged in an activity in spite of its abnormal dangerousness. In a somewhat comparable way one could think of strict liability as a sanction for the failure to adopt a precautionary attitude, more specifically for the ultimate breach of precaution, consisting in nevertheless undertaking the activity. Strict liability, so the argument goes, is the sanction for having engaged in an activity despite being scientifically uncertain about its potential dangers. Undeniably there is a resemblance between the principle of precaution and the arguments that have led to the introduction of strict liability, as has been recognized by several.53 Madame G. Viney cleverly observes this in the comments54 to the basic decision of the French Cour de Cassation, applying for the first time the “théorie du risque” while Salleiles (who, with Josserand was a father of the “théorie du risqué”) frequently and repeatedly uses the word “précaution” and “défaut de précaution”.
18
It is however not in those terms that the relevance of the principle of precaution for the law of tort has been mostly understood. In fact, instead of considering the precautionary logic as an argument in favour of a regime of strict liability, some authors have proclaimed the thought that the precautionary principle 52 53
54
Ewald, Conn.Ins.L.J. 1999–2000, 114. P. Lascoumes, La précaution comme anticipation des risques résiduels, Année tociologique 1996, 351 ff. Lambert-Faivre (fn. 1), 793 no. 696. Note under Cass.fr., 18 June 1896, Dall. 1897, 438 ff.
Risks and Uncertainties in the Law of Tort
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would serve to restrain the expansion of no-fault liability, especially the (strict) liability based on the “théorie du risque”.55 The advent of the precautionary principle has indeed been considered by some to mark a rebirth of fault liability56 and by the same token a return to an ethical principle.57 The idea of the alternation of periods of confidence with intervals of fearful distrust in the merits of the prevailing scientific insight, that I spoke of earlier, is taken as a starting point. The “théorie du risque”, so is argued, was the typical product of an era of blind scientific confidence, but it is no longer suited to the present time of scientific uncertainty. This uncertainty invites us to think in a new way about risks, i.e. in a way that thinks about risks linked to innovation in terms of behaviour. Judging behaviour instead of thinking about dangerousness of activities implies a return to an ethical standard. And this ethical standard is incompatible with the position, adopted under the “theorie du risque”, that strict liability can be imposed even in situations where no scientific insight is available about the risks of the activity. 3. The “Soft” Influence of Precaution The scenario that the precautionary principle should lead to a “retour en force” of fault liability has been severely criticized and generally considered to be highly improbable. On the contrary, the precautionary principle is mostly considered to reinforce the theories that have underlain the introduction of strict liability and the principle is even mentioned among the theoretical bases of the proposals of new criteria of liability like “la mise en danger d’autrui”58 59. In the Kourilsky-Viney view, the issue of the relationship between precaution and civil liability can be summarized as follows: the precautionary principle is certainly not an autonomous ground of liability, and whatever the principle might be able to achieve in renewing or readjusting the existing law of civil liability, it has already been achieved, and done better so, by the “théorie du risque” and the resulting liability without fault. If it is claimed that the precautionary principle has the merit of justifying the reversal or alleviation of 55 56
57
58
59
Comp. Kourilsky/Viney (fn. 20) 181. See the description of the theory: G. Martin, La mise en oeuvre du principe de précaution et la renaissance de la responsabilité pour faute, Juris Classeur Périodique (J.C.P.), Supplément aux Cahiers du droit de l’entreprise, 15 April 1999, 3–5; id., Précaution et évolution du droit de la responsabilité civile (1995) 301; P. Lascoumes, La précaution, un nouveau standard de jugement, Revue Esprit 1997, November, 132; C. Lepage, Que faut-il entendre par principe de précaution?, Gazette du Palais, 8–9 October 1999, 10–11. M. Rémond-Gouilloud, Du risque à la faute, Risques, Les cahiers de l’assurance 1992, 11. That precaution may lead to a renewed concept of fault is elegantly expressed by M. RémondGouilloud as follows: “si l’obligation d’assumer le risque, signe d’un système sûr de soi, fait place à une éthique de prudence, où chacun est prié de multiplier les précautions face à l’inconnu, la faute sanctionnant ces devoirs est rénovée, inedited”, Le risque et l’incertain: la responsabilité face aux avancées de la science, in: La vie des sciences, comptes rendus, série générale, vol. 10, 1993, n°4, 431, also cited by Martin (fn. 12) 304. Guegan, R.J.E. 2 (2000) 164. About the comparable concept of “La mise en danger d’autrui,” see G. Schamps, La mise en danger, un concept fondateur d’un principe général de responsabilité, 365: “la responsabilité pour risqué remplit un rôle préventif en incitant à l’adoption de mesures de précaution”. About the concept and some of its applications, see G. Schamps, Le relâchement des liens entre les responsabilités pénale et civile, in: Mélanges offerts à Marcel Fontaine (2003) 681–702.
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the burden of proof on behalf of those exposed to potential risk, that is exactly what the “théorie du risqué” has led to be accepted in situations of industrial accidents or transportation risks with respect to the proof of fault and the proof of causality. And if it is claimed that the principle of precaution might lead to eliminating scientific uncertainty as a justification and as a defense, the “théorie du risque” has exactly achieved this same result by solely requiring, as conditions of liability, the proven damage and its link to a dangerous activity. G. Viney finds a clear illustration of this in the attitude that was taken vis-à-vis the “risque de développement” with respect to the liability of professional sellers for damage caused by defective products – say product liability situations. Up until the implementation of the product liability directive, French courts had constantly refused to allow “l’ignorance invincible” (the impossibility of the seller knowing of the hidden defects in his products) as a valid defense. If anything new was introduced or stimulated by the precautionary principle, it was certainly not the introduction of a new criterion of liability next to, (and in competition with) strict liability, but rather the invitation to think of new systems of compensation, irrespective of liability, in other words, the invitation to go beyond liability, by the creation of systems of indemnification defense60. Where French law has perhaps taken the lead in this movement, the same approach is observed as having success in an increasing number of countries with respect to serial risks of harm to health, food safety and the environment61.
20
Leaving aside the fear that the precautionary principle would lead to a renaissance of the concept of fault and to a retreat of the domain of strict liability, the question remains to be explored how indeed the concept of precaution does influence, or strengthen, the fault criterion. More generally, the question is how the precautionary principle has an influence on the basic concepts and the operation of the tort law system. Several authors have thought that such an influence exists and that it manifests itself at several levels of the liability system: at the level of the contents of the fault requirement, at the level of the proof of causation, at the level of the level of defining the limits of damage, at the level of prescription, etc. Let us have a brief look at some of those influences. In the words of Geneviève Viney, who underwrites the thesis that the traditional law of civil liability is quite capable of handling uncertainty, “la précaution, tout comme la prévention, reste la fille de la prudence”62 and that a lack of care (“imprudence”) includes a lack of precaution. The distinguished author nevertheless seems to concur with those who claim that the principle of precaution may have a renovating effect on the notion of fault. This may occur in several ways. Especially in those regimes of civil liability like the French and Belgian system, where the violation of a legal duty constitutes fault, the widening of 60 61 62
The French contaminated blood case led to the creation of “un fonds d’indemnisation”. The Belgian asbestosis fund being one of the latest examples. G. Viney (Kourilsky/Viney (fn. 20)), who suggests that there may be room for replacing the precautionary principle by the concept of prudence which includes both prevention and precaution.
Risks and Uncertainties in the Law of Tort
21
duties, which was imposed by specific legislation concerning new technologies, automatically led to an extension of the cases of faulty behaviour. In addition the precautionary principle may also manifest itself in the appreciation of the general duty of care, by enlarging the obligations that a reasonable man is expected to fulfil,63 a good example of such enrichment being the duties of information, warning and of follow-up. Especially for governmental authorities64, but also for others, these duties may become more extensive under the influence of the precautionary principle, so as to extend also to potential dangers, instead of being limited to probable or possible dangers65. A precautionary approach would oblige them to inform about or warn against suspected dangers that are not at all proven to exist. Precaution may also create the obligation to inform individuals about dissenting views or opinions (e.g. on the safety of a product or procedure)66. There may also be a change of the addressees of those duties to inform and warn: in matters relating to health, the duty of communication about dangers or even about divergent opinions not only benefits the individual party to a contractual relationship, but communications such as these should be directed to the general public67 and to all those that may be threatened by the risk. Furthermore the information and warning duties of professionals and authorities may be influenced in the sense of having a longer duration and extend until after the time delivery of the product or service. Such lasting information, which implies the obligation of the professional to also give a “follow up” to his duty of delivery, may be extended under a precautionary approach68, that is indeed characterized by a more dynamic, rather than static approach. Among the traditional factors to be taken into consideration in establishing the standard of conduct and thus in establishing what is a faulty derogation from such standard figures, is the foreseeability of the damage. According to what may be considered as the prevailing theory, the requirement of foreseeability of the loss is considered to be foreseeable if the loss is a possible consequence of the act, and if the possibility that harm may occur is reasonably foreseeable.69 63
64 65 66 67
68
69
Comp. D. Jacotot, Le principe de précaution et le renforcement de l’action en responsabilité pour faute, R.J.E., special issue 2000, 95. Kourilsky/Viney (fn. 20) 187. Schamps (fn. 46) 191. Martin, J.C.P. E, 15 April 1999, 4 M.-A. Hermitte/C. Noiville, L’obligation d’information en matière de santé publique, Gaz. Pal. 23/24 October 1998; P. Sargos, L’information sur les médicaments. Vers un bouleversement majeur de l’appréciation des responsabilités, J.C.P. 1999, I, 144. See art. III-2, first alinéa of the Code de la Santé publique (Act 4 March 2002) imposing the obligation. Kourilsky/Viney (fn. 20) 189. Such duties have already been incorporated in legal provisions. In the French Act of 19 May 1998 implementing the product liability directive and introducing Art. 1336-12 of the French Civil Code, the duty to such follow-up is imposed in an indirect and implicit way, i.e. in the context of a possible – henceforth authorized – exoneration of liability for development risks. The producer who violated his “obligation de suivi”, being barred from benefitting from such exoneration (Art. 1386,12, 2nd alinéa of the Code Civil). One is aware that this limitation of the development risk defense earned France a condemnation by the European Court of Justice (C-52/100, Commission v. France Jur. I (2002) 3827). Cass. 21 March 1986, Pasicrisie I (1986) 910, See also R.O. Dalcq/G. Schamps, La prévisibilité du dommage en responsabilité civile. De son incidence sur la faute et sur le rapport de causalité, Revue de droit penal (Rev.dr.pén.) 1994, 381.
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The question is whether the foreseeability requirement requires that there is scientific certainty about a risk of harm, or, in other words whether the requirement of foreseeability of the harm can also be fulfilled in cases where there exists only a hypothetical or potential risk of harm. In a system as the Belgian one, where the Cour de cassation leaves a large amount of discretion to the trial judge, it appears that the question may be answered in the affirmative: the requirement of foreseeability should not prevent a judge from considering that damage is reasonably foreseeable, although there is no scientific certainty about such damage if at least the reality of such risk of harm can be assumed given the presence of scientific indications70. The precautionary idea may very well lead to an imposition of higher standards in the sense of that under certain circumstances a reasonable decision-maker may be expected to take into consideration, not only the actual risks, but also the potential risks, in other words, uncertainties. It may be true that until the 1990s courts generally refused to deny the foreseeability of damage by exposure to electromagnetic fields and that doctors and hospitals were not supposed to consider HIV-infection as reasonably foreseeable in 198571. Here again the state of scientific insight has rapidly developed. Equally often mentioned as an effect of the precautionary principle upon the fault concept is that the so-called “faute d’abstention”, the fault by omission comes more into focus, especially as far as the behaviour of public authorities is concerned. According to art. 4.103 of the Principles of European Tort Law, a duty to act positively to protect others from damage may exist if law so provides, or if an actor controls a dangerous situation or when there is a special relationship or when the seriousness of the harm, on the one hand, and the ease of avoiding the damage, on the other hand, point to such a duty. It has been claimed that, in the case of scientifically uncertain threats of grave and irreversible harm, there is something like a legal obligation, especially of public authorities to do something: remember indeed that the very essence of the precautionary principle is that absence of scientific certainty should not be used as an excuse for not taking cost effective measures.
22
We just came to the tentative conclusion that if one may not expect from e.g. a producer or other professional that he inform his clients about risks that he cannot know himself, this means that there should not be some duty to warn in cases where there is scientific uncertainty about grave and irreversible danger. Do allow me to make in this context a little excursion into the well-known question about the relation between the situations of “scientific uncertainty” and the situations that fall under the concept of “development risk”. Remember in this context that the Court of Justice has decided that the “development risk” 70 71
Lierman in his doctoral dissertation, (fn. 48) 407, no. 678. Olsborn v. Irwin Memorial Blood Bank, California Court of Appeal 1992, 5 Call. App. 4th 234: but this is not without limit. Already at that time, an exception was accepted in those cases where a substance causes known diseases, and also has another consequence that is scientifically uncertain. In such case the defendant is liable also for the damage about which there was uncertainty (See Hoge Raad (H.R.), 6 April 1990, Nederlandse Jurisprudentie (N.J.)) 573; H.R. 25 June 1993, N.J. 1993, 686.
Risks and Uncertainties in the Law of Tort
23
defense in the 1986 Product Liability Directive means that the producer, in order to be exonerated, has to prove that it is absolutely impossible to discover the defect in light of the most advanced state of scientific knowledge72. But no answer is given to the question what degree of uncertainty must attach to these scientific data in order to conclude to their impossibility of being discovered. I personally have always thought that the conditions of the development risk are not fulfilled when there is a doubt, in other words when there is uncertainty. I have tried to demonstrate already long ago73 that the factual hypotheses of both legal tools (precaution and development risks) are different. As it is accurately summarized by A. Guegan, the hypothesis of the “development risk” is the extreme form of the uncertainty. The development risk hypothesis does not concern “the absence of scientific certainty given the state of knowledge and technology at a given moment” but the simple ignorance, or as Ewald says, the impossibility not only to know, but even to imagine74. In my view the development risk concept is in the area of the unknown unknown – only in this hypothesis may there be exoneration of liability. Uncertainties are in another segment! Moving on with our examination, our next question is how the concepts of recoverable damage can be affected by the hypothesis of uncertainty. In her most interesting essay on the contribution of the precautionary principle to the law of civil ability75, Ann Guegan cautiously suggests that the precautionary principle might be translated into the statement that the absence of scientific certainty should not be an excuse for the judge to postpone effective and proportionate measures in view of the potential risk of harm. Two arguments are raised to support this proposition: 1. the hypothesis of a grave and irreversible danger justifies that anticipative measures be taken; 2. the precautionary principle invites the judge to do away with traditional logic of restoration and compensation in the short term76. However when it comes to translate these propositions into the actual question whether the potential risk of a grave and irreversible danger is sufficient proof of damage that justifies a civil liability action, the obstacle of the requirement of the certainty of the damage looms ahead. The traditional rule is indeed that, in order to give rise to liability, the damage must not be hypothetical, but certain, and certainty in this context implies that the judge must have achieved such a degree of conviction to not seriously envisage the contrary, even if this is theoretically possible. One must admit that at first sight the “certainty of damage” requirement appears to exclude tort liability in situations of uncertainty. It may be true that judges are given a certain margin of discretion in evaluating what is certain, but the directives that they should follow are vague and confusing. It is said that in French law “le dom72 73
74 75 76
Court of Justice, 29 May 1997, Jur. 488 with a note by A. Penneau. Cousy, Les cahiers de l’Assurance 1995, 149–162; id., The precautionary principle: a status question, The Geneva Papers on Risk and Insurance 1996, 149–152. Guegan, R.J.E. 2 (2000) 175. Guegan, R.J.E. 2000, 147, 167. Comp. M. Rémond-Gouilloud, A la recherche du future. La prise en compte du long terme par le droit de l’environnement, R.J.E. 1992, 5.
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mage virtuel ou potential certain est réparable, alors que la dommage eventual ne l’est pas”77 but one wonders whether these fine nuances truly help78. If the potential threat of grave and irreversible danger may not lead to compensation of damage, the question is whether there are no other remedies available that can be used in such cases of uncertainty. Ann Guégan submits the suggestion that, in order to better take the precautionary principle into account, one should rather think in terms of interlocutory or interim relief. The power of judges to take “provisional or interlocutory measures” should be extended and to do so such requirements as “urgency” (by taking into account the gravity of the potential danger), and “seriousness” of the allegation (by giving more room to more doubt) or “imminence of danger” (by dropping the certainty requirement) would have to be redefined79. The judicial certainty would have to be replaced by a “scientific doubt” based on a bundle of indications (“un faisceau d’indices”). And the condemnations would consist in awarding a provisional amount that allows the financing of adequate precautionary measures. The definitive decision would be suspended in order to give time to the scientific development. Kourilsky and Viney also appear to think more along the lines of interim relief when they suggest that condemnation should concentrate on the potential risk and on the monitoring of it, by pronouncing “des measures conservatoires ou de remise en état qui s’imposent pour prévenir un dommage”.
24
The concept of uncertainty, in the simple, traditional meaning of lack of (judicial) certainty about facts, is well known to the law of tort, especially in its aspects which deal with causation. One thinks e.g. of cases where the identity of the tortfeasor cannot be determined with certainty (one of several members of a group caused damage, but it is uncertain who exactly did so) or cases where one cannot be sure whether, under a conditio sine qua non test, the loss would have occurred in the same manner. If these cases are of less interest to us here, a somewhat more direct importance is attached to the cases where there is uncertainty about the effects of a certain activity or event, in other words, where it is not certain that a given activity is the cause of the harm that the victim has suffered. One thinks of the worker who cannot prove that his lung cancer is due to his having worked in a factory that handles asbestos. Although this last example which deals with “specific” causality does not fit into the hypotheses that we are dealing with today and that relate to “general causality”80 (there being no scientific uncertainty about cause and effect generally, but only about course of events in the individual setting of this case), it is 77 78
79
80
Guegan, R.J.E. 2 (2000) 168. Inspiration has also been sought in the case law on the “fear for future disease” cases; See Lierman (fn. 48) 419 who refers in this context to the Potter v. Firestone Tire and Rubber Cy. 363 P. 2d 795 (Cal. 1993) in which the traditional requirement that the fear must relate to a physical injury is dropped, while maintaining the requirements that the fear must be reasonable and the occurrence of the feared event “more likely than not”. Especially the last requirement appears to be incompatible with the hypothesis of uncertainty. See Guegan, R.J.E. 2 (2000) 169 and the critics: Godard/Henry/Lagadec/Michel-Kerjan (fn. 10) 176 ff. On the difference between general causality and specific causality, see M.A. Berger, Eliminating general causation: notes towards a new theory of justice and toxic torts, Columbia Law Review 1997, vol. 97, 2122, (also cited by Lierman (fn. 48) 429).
Risks and Uncertainties in the Law of Tort
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still of interest because of the solution that has been given to it. In several jurisdictions, courts or legislators have solved these kinds of issues of uncertain causality by reallocating the burden of proof 81. Also with respect to situations of (general) scientific uncertainty (that we are dealing with today), proposals were made, especially with respect to the dissemination of genetically modified organisms, or, more generally with respect to all potential threats to the environment, to put the burden of proof of the absence of damage upon those who undertake such projects, as a precondition for their obtaining an authorisation82. However the theoretical foundation underlying this proposal and proclaiming that all new techniques imply, if not a certain risk, in any event a scientific uncertainty, so that prudence is required as long as the “harmlessness” of the new procedure has not been demonstrated, has been heavily criticized. The theory is seen as a true hindrance to innovation and leading to imposing an obligation of abstinence, whereas the precautionary principle should be translated into attitudes and procedures that encourage the introduction of new technologies. That is why other solutions are proposed that aim at alleviating the burden of proof rather than at reversing it. Several techniques of such alleviation (res ipsa loquitur, presumptions, etc.) are quite well known to the law of civil liability. But the principle of precaution would lead to an application of such mechanisms to situations where the judge has to decide upon the threat of serious and irreversible harm that has not yet occurred. In this view, the principle of precaution would lead to alleviating the requirement of causation with respect to potential risks83. 4. Concluding Perspectives These are not conclusions. The thoughts developed hereabove did not have the ambition of arguing in support of a thesis. My objective was more humble and was to create awareness of the issues and questions that arise out of the confrontation between the development of science – in our case, the insufficient state of development of science – on the one hand, and the law, in particular the law of tort, on the other hand. Whereas the traditional law of torts is quite familiar with such concepts and tools as risk assessment, prevention, cost-benefit analysis, causation and reversibility, the concept of uncertainty confronts us with the limits of traditional risk assessment, with a new concept of prevention and prudence that is called precaution, with uncertain causality and with the spectre of grave and irreversible danger. Once again the law of tort, with its particular sensitivity to new developments, has proved to be an excellent testing ground for the impact of changes in society upon the law. It may be true, as Jenny Steele rightly observes in her highly interesting essay on Risks and Legal Theory84, that precaution does not resolve the problems associated 81
82
83 84
Compare the solution of the Dutch Hoge Raad in the H.R. 26 January, N.J. 1996, 607 (but see H.R. 31 March 2006, where the high court chose on conclusions of Advocate General J. Spier for a proportional liability in a case where the illness of a worker could have been caused either by exposure to asbestos or to the smoking habits of the victim or to other causes). M.A. Hermitte/C. Noiville, La dissémination volontaire d’organismes génétiquement modifiés dans l’environnement, R.J.E. 1993, vol. 3, 391. Guegan, R.J.E. 2 (2000) 175. J. Steele, Risk and Legal Theory (2004).
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with uncertainty. But the concept of precaution certainly makes us aware of the new questions to be asked. I conclude with the words of Jenny Steele; “as advice on the basis of risk becomes more sophisticated and more transparent, it also becomes less conclusive. The precautionary principle, which asks us to prioritise safety, can itself be said to lead to ambiguity. To be competent in the methods of risk is, increasingly, to negotiate ambiguous and incomplete information and to exercise choice in the face of these”85. One perspective is clear: the relationship between scientific developments and the law, including the law of tort, opens avenues for further examination and research.
85
Ibid., 207.
Essays on Wrongful Death
I. Wrongful Death – Basic Questions Helmut Koziol* 1. Introduction
1
It goes without saying that the wrongful injury of a person, the victim, by another, the tortfeasor, always raises interesting questions for a lawyer. Not only is he faced with all the problems regarding the prerequisites for establishing the tortfeasor’s liability, but he also has to think about which harm has to be compensated and to what extent, thus also which methods of calculation have to be used, e.g. objective or subjective yardsticks. All these problems are – you might say – in the normal scope of tort law. Cases of wrongful death, however, highlight some particular legal aspects: It is not the victim himself who claims because he is already in a better world and does not feel the consequences of his death. As the person who suffered the injury no longer exists, at stake are primarily – at least at first sight – not his losses and his compensation but the harm suffered by the surviving dependents and their compensation. We will see that to some extent another classification seems possible and reasonable. But at any rate, in regard of compensation, we have to take into account that under no circumstances will the victim himself but third persons claim and be awarded damages and that, therefore, ultimately not the interests of the victim himself but of third persons seem to be decisive.
2
In order to gain a clearer insight into the specific problems of wrongful death and to scrutinize whether the mentioned peculiarities are really of relevance, I think it best firstly to point out the more general questions which arise in case of wrongful death and only afterwards go on to the specific problems of wrongful death. In doing so I am always assuming that the defendant is liable for the victim’s death. 2. Damage Caused by Personal Injury Before Death
3
If a person suffers a fatal injury which does not cause his death immediately but only after some time, the injured individual may incur expenses for medical care prior to his death and he may sustain a loss of income. Without a
* I would like to thank Donna Stockenhuber for proof-reading the text.
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doubt the victim has a claim on compensation of this pecuniary harm1 and under all legal systems the law of succession provides a claim of the heir for the pecuniary harm not already compensated at the time of death2. This seems to be a matter of course as the victim’s claim is part of his patrimony which in principle devolves upon the successor. The situation, however, is somewhat more complicated if non-pecuniary loss is at stake. Of course, the victim has a claim on compensation for his pain and suffering as long as he is alive3. But already a more difficult question arises: Is the victim entitled to be compensated also for the grief and thus emotional harm caused by the knowledge of his impending death? One may assume that the legal systems which provide compensation to an injured person for the harm caused by the knowledge of lifelong handicap will also be in favour of compensating the above mentioned emotional harm of the dying person4. Here a special problem of wrongful death does not seem to be under discussion but rather whether, in addition to physical pain, pure emotional harm has to be compensated.
4
However, there is another issue which commonly arises in cases of wrongful death and also in cases of natural death shortly after injuries which are not fatal: Is the successor entitled to claim compensation for the victim’s pain and suffering as well as emotional harm caused by the knowledge of his impending death if the deceased did not devote his last hours to making up a claim? In other words: Is such claim on non-pecuniary loss inheritable? Some legal systems – in particular the Dutch and the Spanish – refuse5 or – e.g. the Austrian and Italian – recently refused6 such a claim. This may seem surprising as such claim concerns compensation in money and, therefore, there seems to be no difference to the claim on compensation for pecuniary loss which may be relevant under the law of succession.
5
1
2 3
4
5
6
See B.A. Koch/H. Koziol, Comparative Analysis, in: B.A. Koch/H. Koziol (eds.), Compensation for Personal Injury in a Comparative Perspective (2003) no. 40 ff. with references to the country reports. Cf. ibid., no. 56. See ibid., no. 53 ff; W.V.H. Rogers, Comparative Report, in: W.V.H. Rogers (ed.), Damages for Non-Pecuniary Loss in a Comparative Perspective (2001) no. 4, all with references to the country reports. In this sense the country reports by E. Karner/H. Koziol, Austria no. 46; H. Cousy/D. Droshout, Belgium no. 28 f.; S. Galand-Carval, France no. 41; U. Magnus/J. Fedtke, Germany no. 14; M.H. Wissink/W. van Boom, The Netherlands no. 30; M. Martín-Casals/J. Ribot/J. Solé, Spain no. 34 ff.; all in: W.V.H. Rogers (ed.), Damages for Non-Pecuniary Loss in a Comparative Perspective (2001). Disapproving W.V.H. Rogers, England, in: W.V.H. Rogers (ed.), Damages for Non-Pecuniary Loss in a Comparative Perspective (2001) no. 22. Wissink/Van Boom (fn. 4) no. 27; M. Martín-Casals/J. Ribot/J. Solé, Compensation for Personal Injury in Spain, in: B.A. Koch/H. Koziol (eds.), Compensation for Personal Injury in a Comparative Perspective (2003) no. 118. Before 1996, the Austrian Supreme Court (SZ 69/217 = Juristische Blätter 1997, 40) decided that the surviving dependants are entitled to such claim. Cf. to the different opinions in Italy F.D. Busnelli/G. Comandé, Italy, in: B.A. Koch/H. Koziol (eds.), Compensation for Personal Injury in a Comparative Perspective (2003) no. 151.
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6
But the idea of such restriction has its basis in tort law: Pecuniary loss can be compensated by pecuniary means, i.e. by compensation in kind or by money, so that the extent of patrimony is ultimately the same as before the occurrence of the damage. Compensation in kind for non-pecuniary loss is possible only in rare cases. If such compensation has to be ruled out, non-pecuniary loss cannot be compensated by non-pecuniary means. Therefore, in such cases the only way to compensate non-pecuniary harm is to award the victim money and thus – roughly expressed – enable him to compensate the bad feelings caused by the injury by comforts which create pleasant feelings. But such balancing of feelings is no longer possible if the victim has already died. Further, one can argue that the heir would inherit a greater patrimony than the deceased ever possessed and will gain an advantage as a result of the victim’s pain and suffering. On the other hand, it can be pointed out that the claim came into being before the victim’s death, that this claim is part of the deceased’s patrimony and that it would seem strange to exclude that part of the patrimony from succession.
7
Further, one must not forget the idea of prevention, which has been acknowledged for a long time under Austrian law7. About 120 years ago the father of the school of law and economics, V. Mataja, already considered this concept to be of great importance in tort law8 and today the idea of prevention is stressed by the modern school of law and economics9. This idea speaks out loudly – you may even say: is shouting – in favour of succession: Otherwise the tortfeasor who injures the victim so seriously that he cannot submit a claim for compensation for his pain and suffering would have an advantage. One could think it questionable if the legal system should give incentives to someone who wants to kill another to do so in a very effective and quick way.
8
As far as I know, today most of the legal systems entitle the successor to claim; but the report by Rogers will inform in detail. 3. Damage Caused by Death
9
The characteristic feature of compensation for damage caused by wrongful death seems to be – as mentioned before – that such compensation will always be awarded to a person other than the victim, namely to the successor. But as regards the relevant damage, in some cases one can imagine different points of departure: the basis for compensation may be, on the one hand, the harm of the deceased and the successor may inherit the claim of the deceased; on the other hand, the successor may suffer harm himself and this may be compensated. Further: The harm of the successor could be seen as a consequential loss of the 7
8 9
See F. Bydlinski, System und Prinzipien des Privatrechts (1996) 190 ff.; H. Koziol, Österreichisches Haftpflichtrecht I (3rd ed. 1997) no. 1/15. V. Mataja, Das Recht des Schadenersatzes vom Standpunkt der Nationalökonomie (1888) 19. See, e.g., M. Adams, Ökonomische Analyse der Gefährdungs- und Verschuldenshaftung (1985); H.-B. Schäfer/C. Ott, Lehrbuch der ökonomischen Analyse des Zivilrechts (3rd ed. 2000), both with further details, founded on the fundamental studies of G. Calabresi, The Costs of Accidents (1970); R.H. Coase, The Problem of Social Cost, Journal of Law and Economics 1960, 1, und R.H. Posner, Economic Analysis of Law (5th ed. 1998).
Wrongful Death – Basic Questions
31
primary victim’s injury or as the successor’s independent primary harm. The solution to this question seems to be connected with the problem of qualifying the defendant’s behaviour as wrongful and faulty: it would be possible to think that only the injury of the deceased is decisive or one could argue that, as far as the successor’s harm is at stake, wrongfulness and fault have to be examined independently in regard of the successor’s interests. I think this very abstract description will become clearer in discussing the various problems. Again I begin with pecuniary loss. As to the pecuniary damage caused by the victim’s death, the relative’s loss of maintenance seems to be the most obvious harm which has been discussed for centuries. I assume that it is common to most or even all legal systems that the surviving dependant is entitled to claim compensation for the loss of maintenance from the tortfeasor10. But under most legal systems the basis for such claim does not appear to be the wrongfulness or fault because of violating the surviving dependant’s interest in being maintained, which is a pure economic interest and therefore enjoys hardly any protection11, but the tortfeasor’s liability is established because of the wrongfulness and fault in killing the deceased12. The dependant’s harm is seen as a transferred loss rather than as the primary loss13: If the victim had not been killed but only injured and, therefore, unable to earn an income, the tortfeasor would have had to compensate the loss of income and the victim would have been able to pay the maintenance. One can say that by killing the person obliged to pay maintenance, the loss has been transferred to the dependants. As a result, the dependant’s damages are reduced by the degree of contributory negligence of the victim14.
10
The surviving successor’s loss in case the deceased – if he had lived – would have earned a considerable amount of money and the successor would have inherited the increased estate at the time of the natural death can also be regarded as a consequential harm15. However, such damage will not be compensated under most legal systems16. One of the reasons for making a difference between the loss of maintenance and the loss of inheritance may be that, in case of loss of maintenance, the relative’s financial interest is typically highly important
11
10
11
12
13 14 15
16
This is at least true for all legal systems which have been taken into consideration in Koch/ Koziol (fn. 1) no. 65. W.H. van Boom, Pure Economic Loss: A Comparative Perspective, in: W.H. van Boom/H. Koziol/Ch.A. Witting (eds.), Pure Economic Loss (2004) no. 1 ff. Cf. Ch.A. Witting, Compensation for Pure Economic Loss from a Common Lawyer’s Perspective no. 51; H. Koziol, Compensation for Pure Economic Loss from a Continental Lawyer’s Perspective no. 52; both in: W.H. van Boom/H. Koziol/Ch.A. Witting (eds.), Pure Economic Loss (2004). Van Boom (fn. 11) no. 60 and 75 ff. Koch/Koziol (fn. 1) no. 66 with references to the country reports. In determining the amount of damages, the benefits which the successor gains by inheriting the victim’s patrimony earlier than in case of natural death have to be taken into account. See H. McGregor, Personal Injury and Death, in: International Encyclopaedia of Comparative Law XI (1983), chap. 9, no. 207; W.V.H. Rogers, Compensation for Personal Injury in England, in: B.A. Koch/H. Koziol (eds.), Compensation for Personal Injury in a Comparative Perspective (2003) no. 67.
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for the claimant: His livelihood has been based on financial support provided by the deceased victim17.
12
However, it is also conceivable to take the damage of the deceased as a starting point. In applying an objective yardstick one could argue that a person’s earning capacity has a certain value depending on age, life expectancy and abilities18. In destroying this value the tortfeasor causes damage to the injured person who, at the moment of his death, gains a claim on compensation which is part of the estate19. Thus the heir will inherit this claim and suffer no loss of heritage and the person who lost maintenance could be granted a claim on maintenance against the heir. I think, to some extent, a similar result may be reached by the Italian theory of “danno biologico”20.
13
Such a way of thinking would be supported by economic analysis21. The disciples of this theory point out that earning capacity is a value which should be compensated in case of wrongful death. They stress that otherwise the most severe injury would result in no sanction at all if there are no relatives who lose maintenance. This would be – according to their opinion – an inconsistency and against the idea that tort law has primarily a preventive function.
14
Of course, one has – even if one does not agree with all the ideas of law and economics – to admit that it seems rather strange that, in case of the most severe injury, there may be no claim at all on compensation. Nevertheless, there exist quite some arguments which may justify such a strange outcome. One of the traditional arguments is that with the death of a person his legal capacity ends; because of this it is no longer possible to assign claims on compensation to him22. Further, it has to be taken into consideration that a person’s earning capacity can never be part of his estate and is always extinguished by the death of the person. By establishing the victim’s claim to compensation for the loss of the earning capacity and by declaring it part of the estate, in the end a strictly personal good would be transferred into a pecuniary asset solely for the pur17
18
19
20
21
22
Cf. H. Koziol, Recovery for Economic Loss in the European Union, Arizona Law Review 48 (2006) 885. Critical to such reasoning P. Apathy, Fiktive Operationskosten, Österreichische Richterzeitung 1986, 256; H. Koziol, Die Tötung im Schadenersatzrecht, in: Liber Amicorum Pierre Widmer (2003) 210 ff. This seems to be the solution under Japanese law, cf. H.P. Marutschke, Einführung in das japanische Recht (1999) 189 f.; K. Nitta, Die Berechnung des Schadens beim Unfalltod eines minderjährigen Kindes, Recht in Japan 8 (1998) 80 ff.; H. Stoll, Der Tod als Schadensfall, in: E. von Caemmerer (ed.), J. Zepos-FS II (1973) 686. F.D. Busnelli, Il danno biologico dal “diritto vivente” al “diritto vigente” (2001); G. Bender, Personenschaden und Schadensbegriff. Rechtsvergleichende Untersuchung zur neueren Entwicklung des Personenschadensrechts in Italien (1993); G. Christandl, Eine kurze Darstellung der neuesten Entwicklungen im italienischen Nichtvermögensschadensrecht unter besonderer Berücksichtigung des danno esistenziale, in: S. Patti/U. Stein/S. Bariatti/C. Becker/L. Salazar/K. Nehm, Klauselrichtlinie Mobiliarsicherheiten Strafverfolgung, Jahrbuch für Italienisches Recht vol. 18 (2005) 277–298. M. Adams, Ökonomische Analyse (2nd ed. 2004) 174 ff.; H. Kötz/G. Wagner, Deliktsrecht (10th ed. 2006) no. 737 ff.; Schäfer/Ott (fn. 9) 349 ff. Cf. Ch. von Bar, Gemeineuropäisches Deliktsrecht II (1999) 61; H. Stoll, Haftungsfolgen im bürgerlichen Recht (1993) 359.
Wrongful Death – Basic Questions
33
pose of giving the heirs an asset – an asset they would never have gained if the victim had not been killed but died in a natural way23. Therefore, it seems more reasonable to solve the problems by extending the claims of the surviving dependants who really have to bear the loss of maintenance and of inheritance. But, on the other hand, this would not refute the objection that killing a person would not establish any liability to compensate damage if no relatives exist. This is a strong argument in favour of construing a damage of the victim himself 24.
15
As to the non-pecuniary loss: First of all, in case of wrongful death, one has to consider the shock and the grieving of the surviving dependants and, therefore, most of the legal systems entitle them to claim compensation from the tortfeasor25. But there exist quite some differences as to the prerequisites: Under some legal systems a claim of the surviving dependants is only established in case of an illness of their own; other legal systems are more generous in awarding compensation and only look at the mourning of the relatives and do not require any illness. It is a secondary question whether, in establishing wrongfulness, the injury of the victim or causing harm to the dependants is decisive26. I consider it much more reasonable to accept the latter as the interests of the relatives are at stake and as such concept makes it possible to narrow down the tortfeasor’s liability to compensate only the immaterial harm of those persons who are endangered to a high degree by killing the victim.
16
But again one has to confess that the tortfeasor has to compensate no immaterial loss at all if there are no surviving dependants. Such a result would be, as the scholars of law and economics point out, against the preventive aim of tort law. Therefore, we have again to put the question whether there exists, in addition to or instead of the dependants’ claim, a claim of the victim himself to compensation of his loss of life, this time in regard of the non-pecuniary harm caused by the shortening of his life. One has to point out that awarding compensation for this non-pecuniary loss will not achieve the aim of such compensation as the victim is not in a position to gain advantages and thus to compensate the bad feelings caused by the fatal injury. The advantage of such claims would solely be gained by the surviving dependants who inherit them. Further, it will be nearly impossible to overcome the difficulties in assessing human life. But I am nevertheless not so sure that these arguments are prevailing. It seems worthwhile to examine whether a claim of the victim for loss of his life comes into being at the time of his death and, therefore, is part of his estate. The idea that the destroyed life has an immaterial value and that this value continues in a claim on compensation for non-pecuniary loss does not seem bizarre27.
17
23 24 25 26
27
For more details see Koziol (fn. 18) 212 f. Cf. ibid., 217 ff. Koch/Koziol (fn. 1) no. 69 ff. In more detail E. Karner, Rechtsprechungswende bei Schock- und Fernwirkungsschäden, Zeitschrift für Verkehrsrecht 1998, 182 ff. Cf. Koziol (fn. 18) 215 ff.; E. Karner/H. Koziol, Der Ersatz ideellen Schadens im österreichischen Recht und seine Reform, Verhandlungen des 15. Österreichischen Juristentags (2003) 67 ff.
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18
It has to be mentioned that the two solutions – claim of the surviving successor and inheritable claim of the deceased victim – cannot be combined, because then relatives would receive double compensation, once for their own grief due to the victim’s death and once as an heir of the claim for compensation of the victim’s loss of life. Therefore, I feel the legal system has to decide whether the surviving dependants shall have a claim in their own right or inherit a claim of the deceased victim.
19
Finally, I would like to mention a question regarding a special emotional harm of the victim, namely the fear of death. Of course, again the same problem as before arises: awarding compensation for this non-pecuniary loss will not be able to achieve the aim of such compensation as the victim is no longer in a position to gain advantages and thus to compensate the negative feelings caused by the wrongful behaviour. But I feel that a relevant difference also exists: As the fear of death of course happens before death one has to say that the claim is established before the victim’s death and, therefore, the situation is the same as regards the claim on compensation for the pain the victim suffered before death; such a claim is commonly thought to be part of the estate and thus hereditary.
II. Wrongful Death and Compensation for Pecuniary Loss Christiane C. Wendehorst “Death is nothing to us, since when we are, death has not come, and when death has come, we are not.”1
A. INTRODUCTION These very famous words by Epicurus (341 BC–270 BC) may be a consolation to some, but they are definitely only a half-truth. For when death has come to a person, this person may no longer care, and yet there are still a number of living persons who do care very much. And if the death in question has been a wrongful one, these survivors may well turn their backs on Greek philosophers and seek support from the legal profession instead.
1
Lawyers tend to think in terms of money, and, as they cannot raise the deceased from the dead, this is probably the most rational thing for them to focus on. In the first place, the wrongfully induced death of a person will cause distress and anger on the part of anyone who had loved this person and who had enjoyed his or her company. Whether and to what extent such non-pecuniary loss may be compensated for is elucidated in depth in the paper of Horton Rogers. My part is to shed some light on the much more mundane issue of compensation for pecuniary loss.
2
There is a basic distinction to be made between, first, claims against the tortfeasor that have already been vested in the person of the deceased and survive for the benefit of the estate and the heirs, and, secondly, claims that are originally vested in third persons. From a functional point of view, both types of claims are, to a certain extent, interchangeable: The more the tortfeasor has to pay the estate itself, the more the heirs will be in a position to draw upon the latter in respect of their own losses plus the losses of others who would have received benefits from the deceased but for his untimely death.
3
1
Epicurus, cited from Diogenes Laertius, Lives of Eminent Philosophers.
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Christiane C. Wendehorst
B. PECUNIARY LOSS SUFFERED BY THE DECEASED HIMSELF 1. Loss Accrued by the Time of Death
4
Quite often, the victim of fatal wrongdoing is not killed outright, but still goes on living for a certain period after the injury happened. During this period, expensive medical treatment may be sought and a considerable amount of earnings may be lost. Similarly, assets belonging to the victim may be damaged by the tortfeasor before death occurs, e.g. the victim’s car may be destroyed in the same accident that produces the fatal outcome. In this event, claims in tort, and sometimes also in contract or property law, will be vested in the victim himself.
5
If the victim still has the time and the energy to pursue these claims, there can be no doubt that unsettled claims are passed on from the victim to the estate or to the heirs,2 irrespective of whether they are based on personal injury or not, and I do not know of a single legal system that would provide for a different outcome.3 The same holds true, at least as far as compensation for pecuniary loss is concerned, for cases where the victim himself had not yet started proceedings or otherwise pursued his claims against the wrongdoer.4
6
The reason why all European legal systems unanimously adopt this approach is clear: The claim against the tortfeasor is an intangible asset belonging to the victim. It serves to make up for assets lost, e.g. the victim’s car, hypothetical earnings or money which has been paid or still is to be paid to settle the hospital’s bill. To leave the heirs alone with the losses and at the same time not allow them to pursue the victim’s claims against the tortfeasor would be highly inconsistent, and, besides, might favour the tortfeasor who causes a quick death that prevents the victim from claiming damages during her lifetime over
2
3
4
Austria: F. Harrer in: M. Schwimann (ed.), ABGB Praxiskommentar (3rd ed. 2006) § 1325 no. 91; B.A. Koch/H. Koziol, Country Report Austria, in: B.A. Koch/H. Koziol (eds.), Compensation for Personal Injury in a Comparative Perspective (2003) no. 72; England: H. McGregor, McGregor on Damages (17th ed. 2003) no. 36-123; W. Rogers in: Winfield & Jolowicz on Tort (17th ed. 2006) 23-3; Italy: F. Busnelli/G. Comandé, Country Report Italy, in: B.A. Koch/H. Koziol (eds.), Compensation for Personal Injury in a Comparative Perspective (2003) no. 149; Poland: J. Poczobut in: Ch. von Bar (ed.), Deliktsrecht in Europa, Country Report Poland (1993) 31; Spain: M. Martín-Casals/J. Ribot/J. Solé Feliu, Country Report Spain, in: B.A. Koch/H. Koziol (eds.), Compensation for Personal Injury in a Comparative Perspective (2003) no. 117; Switzerland: R. Brehm in: H. Hausheer/H. Walter (eds.), Berner Kommentar, Artikel 41–61 OR (3rd ed. 2006) art. 41 no. 29. Ch. von Bar, Gemeineuropäisches Deliktsrecht, vol. 2 (1999) no. 51 and 54; B.A. Koch/H. Koziol, Comparative Analysis, in: B.A. Koch/H. Koziol (eds.), Compensation for Personal Injury in a Comparative Perspective (2003) no. 56. Some reports suggest a different solution under Spanish law, e.g. Martín-Casals/Ribot/Solé Feliu (fn. 2) no. 118 (“…action to claim any sort of damages…”). However, my reading of the cases cited is a different one, as these cases concern non-pecuniary loss.
Wrongful Death and Compensation for Pecuniary Loss
37
the tortfeasor who inflicts less serious, though eventually fatal injuries on the victim. 2. Loss Accruing After Death: The “Lost Years” Approach It might also be thought that the victim’s ultimate loss of her earning capacity, one of her most valuable assets during lifetime, would give rise to a compensatory claim on the part of the victim. English law has indeed gone down this road with the “lost years” doctrine:5 According to this doctrine, a victim of personal injury may not only claim compensation for the loss of earnings already accrued by the time of the trial, but also for loss of earnings that are expected to accrue in the future, and, most importantly in this context, for earnings lost due to a reduced life expectancy. Damages are calculated by applying the “multiplier approach” to estimate the victim’s hypothetical income and deducting saved living and similar expenses.6
7
If such a claim is settled with a lump sum payment while the victim is still alive, the money will be passed on to the estate. However, if the victim dies before the tortfeasor has paid the money the cause of action will not survive death for the benefit of the estate. This is the result of sec. 1 par. (2) lit. (a) (ii) of the Law Reform (Miscellaneous Provisions) Act 1934 as amended in 1982, which states explicitly that no damages may be claimed for loss of income in respect of any period after the victim’s death. This so-called “lost years bar” will operate even if the victim had obtained a judgment for provisional damages during her lifetime.7
8
However, the vast majority of legal systems in Europe do not even take the first step of the “lost years” approach, i.e. do not even award a claim for loss of earnings in respect of a period after death to the victim herself.8 Even the Italian doctrine of danno biologico is different, as it focuses on loss of health
9
5
6
7 8
Pickett v British Rail Engineering Ltd (1980) Law Reports, Appeal Cases (A.C.) 136; A. Burrows in: Clerk & Lindsell on Torts (9th ed. 2006) no. 29-29. Wells v Wells (1999) 1 A.C. 345; W.V.H. Rogers, Country Report England, in: B.A. Koch/H. Koziol (eds.), Compensation for Personal Injury in a Comparative Perspective (2003) no. 68; J. Shaw in: Ch. von Bar (ed.), Deliktsrecht in Europa, Country Report England and Wales (1993) 63 f.; Burrows (fn. 5) no. 29-27 f. (including a detailed description of how to calculate the damages); further details on the “multiplier approach” at the acturial table for use in Personal Injury and Fatal Accident Cases, published by The Stationary Office, online version by the Government Actuary’s Department available at: http://www.gad.gov.uk/Publications/docs/Ogden_ Tables_6th_edition.pdf. Burrows (fn. 5) no. 29-80 f.; McGregor, (fn. 2) no. 36-002. Von Bar (fn. 3) no. 51, 54; Austria: OGH, Zeitschrift für Verkehrsrecht (ZVR) 2005/61; see also B.C. Steininger, Country Report Austria, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2005 (2006) no. 36 ff.; Germany: D. Medicus, Der Tod als Schaden, Zeitschrift für das gesamte Schuldrecht (ZGS) 2006, 103 f.; BGH Neue Juristische Wochenschrift (NJW) 2004, 2894 f.; H. Sprau in: O. Palandt, Bürgerliches Gesetzbuch (66th ed. 2007) § 843 no. 11; cf. also B. Markesinis/M. Coester/G. Alpa/A. Ullstein, Compensation for Personal Injury in English, German and Italian Law (2005) 161 f.; Scotland: with particular clarity sec. 2 (1) Damages (Scotland) Act 1976 (sec. 3 Damages (Scotland) Act 1993).
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and amenities rather than on loss of future earnings.9 Quite naturally, if no such claim is awarded to the victim herself, it will not pass on to the estate or the heirs by way of succession.
C. PECUNIARY LOSS SUFFERED BY THIRD PARTIES 10
As we have seen, it is not the victim himself who acquires a claim against the tortfeasor because, from the victim’s death onwards, losses no longer accrue to him but instead to third parties. The question that follows immediately then is, whether and to what extent those third parties acquire a claim against the tortfeasor in their own right. In my paper, I will not expand on compensation for expenses incurred while the victim was still alive, e.g. the costs of home care, as I have to focus on losses specifically linked with death. A closer look at these losses suggests the need to differentiate between cases where it is the future non-existence of the victim that causes damage to third parties and those where it is the very event of death. 1. Impacts of Shock and Distress
11
As regards the latter category, there is first the distress of family members and friends who have been bereaved of a much beloved person. This is usually a non-pecuniary loss and thus is dealt with in the paper of Horton Rogers. In severe cases, however, it may also result in pecuniary loss if the impacts of shock and distress are such as to necessitate medical treatment and prevent the shocked and distressed person from performing as usual in his working life. As far as compensation is concerned, it is sometimes difficult though, to draw a clear line between compensation for pecuniary and for non-pecuniary loss.
12
This situation is not specifically linked with wrongful death because it may equally arise in a situation of severe bodily injury, e.g. when the spouse or a child is disabled in an accident and has to spend the rest of her life in a wheelchair. It is not even necessarily linked with any lasting impairment of another person, but might arise also where a relative witnessed an accident from which the victim eventually recovers. Thus, from a technical point of view, these claims may be viewed as “normal” and self-standing claims to damages for personal injury under tort law that do not derive from the primary wrong to the deceased. This is reflected by the debate about whether or not there should be a reduction based on the deceased person’s contributory negligence.10 9
10
Art. 138 Decreto Legislativo 7 September 2005 no. 209 provides for a definition of danno biologico, cf. E. Bargelli, Country Report Italy, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2005 (2006) no. 1 ff.; F. Busnelli, Der Personenschaden – Eine rechtsvergleichende Untersuchung zur dogmatischen Einordnung, Versicherungsrecht (VersR) 1987, 952, 956 ff.; F. Busnelli in: Ch. von Bar (ed.), Deliktsrecht in Europa, Country Report Italy (1993) 21 f.; C. Gozzi, Der Anspruch iure proprio auf Ersatz des Nichtvermögensschadens wegen der Tötung eines nahen Angehörigen in Deutschland und Italien (2006) 28 ff. Pro reduction: Austria: Harrer (fn. 2) Anh § 1325 no. 14; Italy: Cass. 18 February 1971, n. 420, Repertorio Generale Annuale della Giurisprudenza (Rep. Giur. It.) 1971, voce Resp.
Wrongful Death and Compensation for Pecuniary Loss
39
Strictly speaking, such claims are not within the ambit of my presentation, and I will confine myself to some very brief remarks. First, none of the European legal systems provides for a general bar to claims where personal injury was inflicted not by way of intervention into bodily integrity, but through shock.11 Secondly, all European systems show a certain reticence in attributing such damage to the tortfeasor’s behaviour. French, Italian and Spanish law tend to take a rather generous approach,12 whereas most legal systems demand that the consequences of shock amount to significant physical or psychiatric illness and that there was some additional factor establishing a link between the wrongdoing against the primary victim and the injury by shock, be it that the person injured by shock was a close relative of the original victim13 or that he was threatened by the same danger that killed or injured the original victim.14
13
2. Funeral Costs The death of a person, at least if the body is still existent, will also necessitate a funeral, and funerals may be expensive. Accordingly, in cases of wrongful death, funeral costs rank among the most widely recognized heads of damages. All European legal systems provide for some mechanism to pass on the costs to the tortfeasor.15 Most often there are claims for damages in tort, but
11
12
13
14
15
Civ. N. 117 n. 311; Cass. 29 September 1995, n. 10271, Massimario della Cassazione (Giustizia Civile) Giust. Civ. Mass. 1995, 1689; Cass. 6 October 1999, n. 11137, Giust. Civ. Mass. 1999, 2079; see also Gozzi (fn. 9) 193 f.; Germany: G. Wagner in: K. Rebmann/F. Säcker/R. Rixecker (eds.), Münchener Kommentar zum Bürgerlichen Gesetzbuch, vol. 5 (4th ed. 2004) § 823 no. 79; Entscheidungen des Reichsgerichts in Zivilsachen (RGZ) 55, 24, 29 ff.; Spain: Martín-Casals/Ribot/Solé Feliu (fn. 2) no. 94; Sweden: B. Dufwa in: B.A. Koch/H. Koziol (eds.), Compensation for Personal Injury in a Comparative Perspective (2003) no. 110 ff.; H. Witte in: Ch. von Bar (ed.), Deliktsrecht in Europa, Country Report Sweden (1993) 35; contra reduction: Germany: C. Karczewski, Die Haftung für Schockschäden (1992) 385 ff.; J. Hager in: J. von Staudingers Kommentar zum Bürgerlichen Gesetzbuch (13th ed. 1999) §§ 823–825, § 823 no. B 39. Von Bar (fn. 3) no. 62 ff. and 169; F. Ranieri, Europäisches Obligationenrecht (2nd ed. 2003) 635 f.; Koch/Koziol (fn. 3) no. 70. France: C. Radé/L. Bloch, Country Report France, in: B.A. Koch/H. Koziol (eds.), Compensation for Personal Injury in a Comparative Perspective (2003) no. 76 ff.; G. Viney/P. Jourdain, Les conditions de la responsabilité (3rd ed. 2006) no. 305 ff.; K. Zweigert/H. Kötz, Einführung in die Rechtsvergleichung (3rd ed. 1996) 620 ff.; Italy: Trib. Torino, 8. August 1995, Responsabilità civile e previdenza (Resp. civ. prev.) 282; see also Busnelli/Comandé (fn. 2) no. 152; Spain:Martín-Casals/Ribot/Solé Feliu (fn. 2) no. 119. Switzerland: BGE 112 II 118; Brehm (fn. 2) art. 41 no. 24; Austria: RG EvBL 1940, 99; Harrer (fn. 2) § 1295 no. 16; R. Reischauer in: P. Rummel (ed.), Kommentar zum Allgemeinen Bürgerlichen Gesetzbuch, vol. 2, part 2b (3rd ed. 2004) § 1325 no. 5; Koch/Koziol (fn. 2) no. 85; England: Mc Loughlin v O’ Brian (1983) 1 A.C. 410; Alcock v Chief Constable of South Yorkshire Police (1992) 1 A.C. 310; Germany: BGH NJW 1986, 777, 778; Oberlandesgericht (OLG) Stuttgart Neue Juristische Wochenschrift – Rechtsprechungs Report: Zivilrecht (NJWRR) 1989, 477, 478; see as well Wagner (fn. 10) § 823 no. 78. Alcock v Chief Constable of South Yorkshire Police (1992) 1 A.C. 310 (1991, 3 Weekly Law Reports (WLR) 1057/1991, All England Law Reports (All E.R.) 907) required that there be also proximity to the event in time and space; Bourhill v Young (1943) A.C. 92; Von Bar (fn. 3) no. 68. Koch/Koziol (fn. 3) no. 64.
14
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Christiane C. Wendehorst
compensation for expenses under negotiorum gestio may perform a similar function.16
15
The vast majority of legal systems in Europe are willing to pass on the full funeral costs to the tortfeasor, and many of them are very generous as to what still counts as funeral costs. There are slight differences as to who exactly is entitled to an award, e.g. whether it is always the estate or the heirs17 or the person who is under a duty to arrange the funeral18 or whether it is the person who has actually incurred the expenses.19
16
At first sight, passing on the funeral costs to the tortfeasor seems only fair and the most natural thing to do. However, from an economic perspective, the lack of controversy is surprising, because funeral costs are the only costs that would have been incurred anyway, even if the deceased had died peacefully twenty years later. Awarding a claim for the full funeral costs, as the majority of legal systems does, is not so much compensation for pecuniary loss but rather sparing the bereaved family members further distress and trouble. This is why Belgian law, for example, awards only the anticipation interest, i.e. the loss resulting from the premature outlay of capital. In the end, however, there will not be much of a difference, because the interest in question may soon reach or even exceed the capital sum of the funeral costs.20 3. Loss of Dependency
17
The focus of my paper will be on pecuniary losses suffered by third parties as a result of the fact that the victim no longer exists. Most of these losses are long-term losses, and the most important type is shortfalls in maintenance and other kinds of support. Some legal systems still draw a line between maintenance payments and the provision of services,21 but the line had always been blurred because maintenance payments may be in kind, and over
16
17
18
19 20
21
Austria: ZVR 1972/181; Reischauer (fn. 13) § 1327 no. 11; Germany: Wagner (fn. 10) § 844 no. 15; KG VersR 1979, 379 f. Austria: OGH, ZVR 1979/168; France: Cass. req. 10 April 1922 jur. 153; Germany: OLG Hamm NJW-RR 1994, 155; Italy: Cass. 21 May 1979, n. 2124, Rep. Gen. 1977 Sp. 3472 Nr. 30; Switzerland: Brehm (fn. 2) art. 45 no. 21. Austria: Harrer (fn. 2) § 1327 no. 5; England: Administration of Estates Act 1925, sec. 33 (2); P. Birks, English Private Law (Oxford 2004) no. 7.10: “if a person dies intestate, the personal representative must pay the intestate’s funeral”; Germany: Wagner (fn. 10) § 844, no. 16. Art. 6:108 par. 2 BW, Art. 495 par. 2 Port. Cc. Fonds commun de Garantie Automobile (ed.), Le droit belge en matière d`indemnisation des accidents de la circulation 34 (available at http://www.fcga-gmwf.be); Brehm (fn. 2) art. 45 no. 7 ff. England: Berry v Humm (1915) 1 Law Reports, King’s Bench (K.B.) 627; Jeffery v Smith (1970) Road Traffic Reports (R.T.R.) 279; Morris v Rigby (1966) 110 S.J. 834, C.A.; Regan v Williamson (1976) 1 WLR 305; Germany: § 844 par. 2, § 845 Bürgerliches Gesetzbuch (BGB); R. Frank, Schadensersatzansprüche bei Tötung des Versorgers (§ 844 par. 2 BGB), in: G. Hohloch (ed.), Festschrift für Hans Stoll (2001) 143, 150 ff.
Wrongful Death and Compensation for Pecuniary Loss
41
the past decades, the differentiation has either been abolished or reduced to all but insignificance.22 a) The Nature of Potential Claims
(i) The “Separate Torts” Approach Such shortfalls in maintenance and support are what is commonly called a pure economic loss. Many legal systems in Europe do not differentiate between pure economic loss and other kinds of loss, at least not as far as the basic requirements of a claim in tort are concerned. Instead, factors like personal character, directness or certainty of the damage operate to keep liability in tort within reasonable boundaries.23 Some of these legal systems, for example French, Italian and Spanish law, do not provide for specific regulations concerning the position of dependants in cases of wrongful death, at least not among the general provisions of the civil codes. Thus, claims raised by persons who would, if death had not ensued, have received support from the deceased are based on the general provisions establishing liability in tort.
18
From a technical point of view, they are self-standing claims, which are, at least according to one of several possible interpretations, based not on the tort committed against the deceased, but on an independent tort committed against the claimant (“separate torts” approach).24 This is only possible because the courts apply the limiting factors of personal character, directness and certainty of the damage in a way to allow for such claims. However, the “separate torts” analysis also has serious flaws, and, as we will see, it is hard to reconcile with some features of liability.
19
(ii) The “One Tort, Separate Claims” Approach The majority of liability schemes in Europe embraces a different solution which may be labelled the “one tort, separate claims” approach. Under these schemes, dependants would not be able to rely on the general provisions establishing liability in tort, e.g. because liability will lie only either if the claimant’s life, health, property or similar good has been primarily affected or if the tortfeasor has violated a statutory duty the aim of which is to protect the claimant from damage of the kind in question.25 As the loss suffered by the dependants 22
23
24
25
Austria: OGH ZVR 1978/22; OGH Juristische Blätter (JBl) 1990, 723; OGH ZVR 1993/64; Italy: Cass. Civ., sez. III, 3 November 1995, no. 11453, (1995) Giust. Civ. Mass., fasc. 11; Cass. Civ., sez. III, 17 September 1996, no. 8305; Cass. Civ., sez. III, 6 November 1997, 10923, (1998) Danno e Resonsabilità; Switzerland: R. Brehm, Country Report Switzerland, in: B.A. Koch/H. Koziol (eds.), Compensation for Personal Injury in a Comparative Perspective (2003) no. 97; with regards to comparative law see W. Efing, Schadensersatzansprüche der Angehörigen bei Körperverletzung und Tod eines Menschen (1980) 97. Von Bar (fn. 3) no. 121; Efing (fn. 22) 77 ff.; W. van Gerven/J. Lever/P. Larouche, Cases, Materials and Text on National, Supranational and International Tort Law (2000) 71 f.; Zweigert/ Kötz (fn. 12) 621 f. France: A. Bénabent, Droit civil, Les obligations (10th ed. 2005) no. 677; Viney/Jourdain (fn. 12) no. 322; Italy: G. Pescatore/C. Ruperto, Codice Civile (13th ed. 2005) art. 2043 no. 21. Austria: Koch/Koziol (fn. 2) no. 73; K.-H. Danzl in: H. Koziol/P. Bydlinski/R. Bollenberger (eds.), Kurzkommentar zum ABGB (2005) § 1327 no. 1; England: Rogers (fn. 6) no. 61; Germany: Efing (fn. 22) 6 ff.; Switzerland: Brehm (fn. 2) art. 45 no. 31.
20
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Christiane C. Wendehorst
is pure economic loss and as the statutory duty not to injure or kill others does not aim at securing some people’s maintenance, liability would normally not lie. The same holds true, of course, under strict liability schemes, which usually limit liability to personal injury and sometimes to damage caused to property. If loss of dependency is to be compensated for, then it must be via separate claims specifically awarded to certain people. Again, these claims are independent in various aspects, but they ultimately derive from the tort against the deceased.
21
Under English law, claims in tort raised by relatives had long been barred by the old common law rule in Baker v Bolton, that no one can recover damages in tort for the death of another.26 However, this situation was altered by statute. Today, the Fatal Accidents Act 1976 provides that an action for damages may be brought by the executor or administrator of the deceased for the benefit of the dependants. In this regard, English law has also adopted the “one tort, separate claims” approach. (iii) The “Claims Against the Estate” Approach
22
However, this solution under English law is subject to the condition that the victim herself would, if death had not ensued, have been entitled to maintain an action and recover damages in respect of the wrongdoing. As far as the victim herself had already been awarded damages while she was still alive, the dependant’s claims will be barred, irrespective of whether damages had been calculated on a “lost years” basis or not.27 In the end, the money paid by the tortfeasor to the victim goes to the estate, but certain people are entitled to seek an order against the estate for reasonable financial relief under the Inheritance (Provision for Family and Dependants) Act 1975.
23
An award of provisional damages to the victim does not operate as a bar to an action of the dependants, but as far as the provisional damages had been intended to cover also “lost years”, this shall be taken into account in assessing the loss suffered by the dependants, cf. sec. 3 of the Damages Act 1996. (iv) Claims Under Public Compensation Schemes
24
So far, I have only mentioned approaches based on private law claims against the tortfeasor. Of course, there are also some public compensation schemes that do not only award damages to the direct victims of accidents, but also to their dependants. In part, they are no-fault compensation schemes, like in Sweden,28 26
27 28
Baker v Bolton (1808) 1 Campbell’s Nisi Prius Cases (Camp.) 493, per Lord Ellenborough; Osborn v Gillet (1873) Law Reports (L.R.) 8 Ex. 88; Admiralty Commissioners v SS Amerika [1917] A.C. 38. McGregor (fn. 2) no. 36-010 f.; Rogers (fn. 2) 23-11. L. Wendel in: J. Dute/M. Faure/H. Koziol (eds.), No-fault Compensation in the Health Care Sector (2004) no. 3 ff.; Witte (fn. 10) 49; for a comparative overview concerning no-fault compensation schemes see G. Wagner, Comparative Tort Law, in: M. Reimann/R. Zimmermann (eds.), The Oxford Handbook of Comparative Law (2006) 1036 ff.
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43
and in part they are compensation schemes for the victims of crime.29 As this would go beyond the scope of this paper, I will not go any deeper into this subject but rather focus on compensation schemes based on fault. b) Persons Entitled to Damages
(i) Legal Systems Without Specific Restrictions Who exactly may be entitled to damages against the tortfeasor differs from country to country and depends to a certain extent, but not exclusively, on the general approach adopted as indicated above. It is certainly true that for legal systems that view the dependant’s claims as arising from separate torts, any restriction that is based on the nature of the relationship between the potential claimant and the victim calls for justification. For example, in French law, as far as the lien de causalité is established, the remaining requirements are simply that the damage caused was personnel, direct, certain and licite,30 which allows for a vast degree of flexibility on the one hand, but makes it difficult to draw a firm line between third parties entitled to damages and third parties not entitled to damages. There used to be restrictions, mainly designed to rule out relationships held to be “immoral” or “illegitimate”, like the old French doctrine of lien de droit.31 However, over time, with a general liberalisation of morals on the one hand and growing concern for doctrinal consistency on the other, the restrictions disappeared step by step.
25
Accordingly, legal systems like French, Italian or Spanish law tend to be very generous in this respect today and basically allow any person to sue the tortfeasor as long as this person can prove that the victim would have provided support but for the wrongful death. Claims may be raised by the victim’s spouse and children as well as by a cohabitee, be it in a heterosexual or in a homosexual relationship, by persons who had a statutory right to maintenance as well as by persons who had only a contractual right or no enforceable right at all.32 There is, strictly speaking, not even a requirement that the claimant is in
26
29
30
31 32
Austria: Victims of Crime Act of 9 July 1972; Belgium: chap. III, sec. II of the Act of 1 August 1985; England: Scheme made by the Secretary of State under the Criminal Injuries Compensation Act 1995; France: Act of 6 July 1990; Germany: Act of 11 May 1976 relating to the compensation of victims of crimes of violence; Poland: Law of 7 July 2005 on Compensation by the State to Victims of Some Intentional Crimes, cf. also E. Bagińska, Country Report Poland, in: H. Koziol/B.C. Steininger, European Tort Law 2005 (2006) no. 1 ff.; Spain: Law 35/95 of 11 December 1995 on aid and assistance for victims of violent crime and sexual offences; see also the European Union Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims, OJ L 261, 6.8.2004, 15–18. Bénabent (fn. 24) no. 675 ff.; F. Terré/P. Simler/Y. Lequette, Les obligations (9th ed. 2005) no. 697 ff.; Viney/Jourdain (fn. 12) no. 271 ff. Terré/Simler/Lequette (fn. 30) no. 704 ff.; Viney/Jourdain (fn. 12) no. 305 ff. Von Bar (fn. 3) no. 170 ff.; Ranieri (fn. 11) 550 ff.; France: Cour de Cassation, Chambre criminelle, 20 April 1972, (1972) Bulletin Criminel Cour de Cassation Chambre criminelle N. 134 P. 333; see also Viney/Jourdain (fn. 12) no. 310 ff.; Zweigert/Kötz (fn. 12) 620 ff.; Italy: Cass. Civ., sez. III, 1 August 1987, no. 6672, (1987) Giust. Civ. Mass., fasc. 8–9; Cass. Civ., sez. III, 15 December 1981, no. 6630, (1981) Giust. Civ. Mass., fasc. 12; Cass. Civ., sez. III, 28 October 1978, no. 4932, (1979) Archivio giuridico della circolazione e dei sinistri stradali (Arch. Giur.
44
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need.33 In principle the situation is the same in Belgium, where legal practice, however is dominated to a large extent by so-called tableaux indicatifs, a set of tables published by several associations of judges in cooperation with insurance companies.34 The present version focuses mainly on the surviving spouse and children. (ii) The “De Facto Support” Model
27
In legal systems that follow the “one tort, separate claims” approach, the legislator has to predefine a certain group of persons who are entitled to raise a claim against the tortfeasor. For reasons of legal certainty and in order to keep liability in tort within reasonable bounds, a legislator will be reluctant to allow claims by any person who has suffered any kind of pecuniary loss, but will usually provide for certain restrictions.
28
A number of legal systems, while making such restrictions, keep them to a minimum by demanding merely that the deceased would de facto have provided support to the claimant but for his wrongful death and that this support, by its very nature, is comparable with the support usually provided for dependants. This relatively liberal approach has been adopted, for example, by Swiss, Danish and Swedish law, and since the recent reform of the law of damages also by Finnish law.35 It allows for much flexibility, but, of course, produces also some degree of uncertainty. Under such regimes, there is no doubt that a cohabitee will be entitled to damages, but even a mere friend who used to receive support from the deceased may seek relief.
29
Some of the systems mentioned combine the general clause on de facto support with specific provisions for the surviving spouse or partner and children or other close relatives who were entitled to maintenance against the deceased.36 Danish law even provides for an additional claim to a transitional payment to be made to the surviving spouse or partner immediately.37 An attempt made by the English Law Commission38 to introduce such a combined model in England failed.
33 34
35
36 37 38
Circolaz.) 275; see also Busnelli/Comandé (fn. 2) no. 150 ff.; Spain: STS 1 June 1981 (1981) RJ, 3037; SSTS 10 January 1970 (1970) RJ, 247; SSTS 4 May 1983 (1983) RJ, 2622; SSTS 1 October 1994 (1994) RJ, 7439; STS 24 November 1970 (1970) RJ, 4889; STS 15 April 1988 (1988) RJ, 2777; STS 19 December 1997 (1997) RJ, 8799; see also Martín-Casals/Ribot/Solé Feliu (fn. 2) no. 119. Von. Bar (fn. 3) no. 171. H. Cousy/D. Droshout, Country Report Belgium, in: B.A. Koch/H. Koziol (eds.), Compensation for Personal Injury in a Comparative Perspective (2003) no. 72. Switzerland: Art. 45 OR; Denmark: § 12 Liability for Damages Act; Sweden: Chap. 5 § 2 Damages Act; Finland: Chap. 5 § 4 Damages Act. Denmark: §§ 13, 14 Liability for Damages Act; Netherlands: Art. 6:108 par. 1 BW. § 14a Liability for Damages Act. The English Law Commission is a statutory independent body created by the Law Commissions Act 1965 to keep the law under review and to recommend reform where it is needed.
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45
(iii) The “Statutory List” Model Other legal systems, for example Dutch law, English law, Irish law and Scottish law, provide for a rather detailed and exhaustive list of persons entitled to an award of damages.39 The majority of the lists presently existent reflect modern views of family and society and include cohabitant partners and also partners in same sex couples. There is no restriction to persons who had an enforceable claim against the deceased to be maintained by him.
30
(iv) The “Entitlement to Maintenance” Model In contrast, many legal systems, among them German, Austrian, Portuguese, Greek or Polish law,40 demand that the claimant had a right or even a statutory right to maintenance payments against the deceased. Thus, under these legal systems, the group of people entitled to damages is not defined by tort law, but mainly by family law.
31
Since a legislator will generally be more reluctant to award a claim to maintenance against a person (than to award damages against a tortfeasor who killed that person), these legal systems award damages for loss of dependency only to a very restricted extent. This may cause severe hardship especially in cases where the deceased had supported his cohabitant partner, his brother or sister or his stepchild, as far as such persons are not awarded a claim to maintenance under the family law in question.41
32
c) Assessment of Damages
(i) General Measure of Damages The manner in which damages are calculated varies widely. In the first place, it ought to be mentioned that all legal systems award damages not only for loss of maintenance payments in money or in kind, but also for loss of services and similar kinds of support that may be valued in monetary terms. Of course, court practice as to how services are to be valued differs from country to country. It also ought to be mentioned that the majority of legal systems offers both the possibility of a lump sum payment and of periodical payments.
33
Although, in theory, all legal systems award a claim for damages, not a claim for maintenance, i.e. look primarily at what the plaintiff has lost and not at
34
39
40
41
Netherlands: art. 6:108 par. 1 BW; England: sec. 1 par. 3 Fatal Accidents Act 1976; Ireland: sec. 47 par. 1 Civil Liability Act 1961 (Civil Liability (Amendment) Act 1996); Scotland: sec. 1A schedule 1 Damages (Scotland) Act 1976. Austria: § 1327 ABGB; Germany: § 844 par. 2 BGB; Greece: art. 928 Greek Civil Code; Poland: art. 446 § 2 Polish Civil Code; Portugal: art. 495 par. 3 Código Civil. As to German Law see KG NJW 1967, 1089, 1090; OLG Frankfurt Zeitschrift für das Gesamte Familienrecht (FamRZ) 1984, 790; BGH NJW 1969, 2007 f.; BGH NJW 1984, 977, 978; see also Frank (fn. 21) 143 ff.; H. Kötz/G. Wagner, Deliktsrecht (10th ed. 2006) no. 724; Wagner (fn. 10) § 844 no. 25 f.; Concerning Austrian Law see Harrer (fn. 2) § 1327 no. 11; for Swiss Law see P. Weimar, Der Begriff des Versorgers nach Art. 45 Abs. 3 OR, in: P. Forstmoser/H. Giger/A. Heini/W. Schluep (eds.), Festschrift für Max Keller (1989) 337 ff.
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Christiane C. Wendehorst
what he needs or what the tortfeasor is in a position to pay, there are some important differences in practice. Some legal systems, like Belgian law42 or, to a certain extent, also English law,43 calculate the dependants’ loss in a way that comes close to the victim’s hypothetical loss of earnings, basically looking at the income the victim would notionally have earned until his death, discounted by a certain ratio of the overall family income to reflect what the victim would presumably have used for his own living. So there is basically a presumption that the victim would have given to his dependants what he would not have expended on his personal needs. This holds true at least as far as the spouse or partner is concerned, whereas with children, a more restrictive approach is usually taken.44
35
Other legal systems attach more value to the individual loss and demand a claimant to prove how much the deceased would actually have paid or have been obliged to pay her.45 If the amount the deceased would have paid differs from the amount he would have been obliged to pay, the courts in many countries tend to decide in favour of the claimant and choose the higher amount.46
36
However, in legal systems where liability will lie only if and insofar as the claimant had a right to maintenance against the deceased, the amount the deceased would have been obliged to pay operates as a cap on damages. Furthermore, as the hypothetical maintenance claim would have depended on factors such as whether the claimant is really in need or not, those factors sometimes also influence the claim against the tortfeasor.47 (ii) Pecuniary Gains
37
The question of whether and to what extent the subsequent accrual of benefits which might compensate the claimant wholly or in part for the loss previously incurred may be set off against the claim is a very difficult one. Consistency is hardly ever achieved, and the question is only very rarely and selectively dealt with by the relevant statutory provisions. On the whole, the situation is so confusing even within each of the legal systems under comparison that I will confine myself to some very brief illustrative remarks.
38
In Germany, there is a provision saying that maintenance provided to the claimant by third parties shall not reduce the claim.48 This provision is applied, 42 43 44 45
46
47
48
Cousy/Droshout (fn. 34) no. 72; Fonds commun de Garantie Automobile (fn. 20) 35 ff. Burrows (fn. 5) no. 29-91 ff.; Rogers (fn. 6) no. 63 ff.; Rogers (fn. 2) 23-12 f. Burrows (fn. 5) no. 29-91; McGregor (fn. 2) no. 36-095 ff. Austria: Harrer (fn. 2) § 1327 no. 16; Germany: Wagner (fn. 10) § 844 no. 35; Switzerland: Brehm (fn. 22) no. 98. Austria: Harrer (fn. 2) § 1327 no. 16; OGH JBl 1954, 285; OLG Wien Sammlung Ehe- und Familienrechtlicher Entscheidungen (EF) 72.206; Switzerland: Brehm (fn. 2) art. 45 no. 42; BGE 72 II 165, 170. Germany: Wagner (fn. 10) § 844 no. 35; German courts assess the damages on the basis of maintenance statutes: BGH NJW-RR 1988, 66, 67; NJW 1985, 1460, 1461; BGH VersR 1961, 543; Austria: Harrer (fn. 2) § 1327 no. 16. BGB §§ 844 par. 2, 843 par. 4.
Wrongful Death and Compensation for Pecuniary Loss
47
for example, where the grand-parents or the uncle of a child decide to provide maintenance after the parents’ death, but does not apply where the surviving spouse remarries, because the new marriage would not have been possible without the wrongful death. In other words, maintenance from the new spouse will be taken into account. However, this is hard to reconcile with other lines of cases, including ones of adoption, where courts have disregarded the new parent-child-relationship,49 and also with cases of cohabitation, where the courts disregard the maintenance provided by the new partner.50 Payments received under a pension scheme are usually not taken into account, but the claim will pass to the pension provider via subrogation.51 The acceleration and certainty of the inheritance, on the other hand, does play a role. In particular, the claim will be reduced if the deceased would, but for his untimely death, have used up part of his property for his own needs52 or if dependency itself had clearly rested on the assets inherited.53 In England, sec. 3(3) of the Fatal Accidents Act 1976 provides that where damages payable to a widow in respect of the death of her husband fall to be assessed, the re-marriage of the widow or her prospects of re-marriage shall not be taken into account. As a result of judicial interpretation of sec. 4 of the Act, it now seems that, contrary to a literal interpretation of sec. 3(3) still held to be relevant by some authors,54 the same result will be reached where a widower re-marries.55 Sec. 4 of the Act provides that, in assessing damages in respect of a person’s death in an action under the Act, benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded. As a consequence, any pension or social security benefit will not be deducted, nor will there be any deduction for the acceleration of the inheritance. There is, of course, a serious risk of overcompensation.
39
(iii) Contributory Negligence Contributory negligence on the part of the victim is generally held to lead to a reduction also of the claims of dependants. In many legal systems, for example in English and German law, there is an explicit provision concerning contributory negligence.56 Other legal systems come to the same result by way 49 50 51
52 53
54 55
56
Entscheidungen des Bundesgerichtshofes in Zivilsachen (BGHZ) 54, 269, 274. BGHZ 91, 357, 364. BGH NJW 2001, 1274 f.; BGHZ 54, 377, 379; BGH VersR 1973, 939, 941; BGH NJW-RR 1989, 608; Wagner (fn. 10) § 844 no. 75; G. Spindler in: H. Bamberger/H. Roth, Kommentar zum Bürgerlichen Gesetzbuch, vol. 2, §§ 611–1269, § 844 no. 41. H. Heinrichs in: O. Palandt, Bürgerliches Gesetzbuch (66th ed. 2007) Vorb v § 249 no. 139 f. BGHZ 8, 325, 329; 73, 109; BGH NJW 1974, 1236, 1237; K. Larenz/C. Canaris, Lehrbuch des Schuldrechts, Part II, Vol. 2 (13th ed. 1994) 588. Burrows (fn.5) no. 29–95. Stanley v Saddique (1992) Q.B. 1, CA which bound the court in Topp v London County Bus South West Ltd. (1992) Personal Injuries and Quantum Reports (P.I.Q.R.) 206 to disregard the widower claimant’s prospects of re-marriage; see McGregor (fn. 2) no. 36-064 and 36-108; Rogers (fn. 2) 23-13; Claims for Wrongful Death, Law Commission Report No. 263 (1999) par. 4.27. England: sec. 5 Fatal Accidents Act 1976; Germany: § 846 BGB.
40
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Christiane C. Wendehorst
of analogy.57 From the “one tort, separate claims” approach, this seems only logical, as there is no reason why the claims of the dependants should be left unaffected. It is quite interesting though, that also the legal systems taking a “separate torts” approach unanimously hold contributory negligence to be relevant,58 which is hard to reconcile with the existence of separate torts. 4. Loss of Other Prospective Benefits a) Private Relationships
41
The untimely death of a person may cause this person’s family and friends a whole range of other kinds of pecuniary loss that may not be qualified as loss of maintenance or support formerly provided by the deceased. Under most legal systems, there is simply no basis for such losses to be compensated for, as third parties may not rely on the general provisions establishing liability in tort and as the specific provisions on third parties’ claims are limited to funeral costs and loss of maintenance and support.
42
However, there are some compensation schemes which do not limit the heads of damages recoverable, like English law, or which do not make any specific restrictions at all because they adopt the “separate torts” approach, like French or Italian law. Where the surviving spouse or child has, as a consequence of the wrongful death, been deprived of social security benefits, state subsidies or similar payments, this is usually taken into account.59 Where the damage consists in loss of property inherited, i.e. in the loss of the wealth the victim would have accumulated over the rest of his working life, a claim would probably not succeed.60 Things are equally uncertain where a relative provides proof that, but for the untimely death, the victim would have made a testamentary disposition in his favour,61 e.g. when the deceased had already made an appointment with the notary and would certainly have signed the relevant documents if he had not been killed in a traffic accident on his way to the notary’s office. b) Business Relationships
43
If a person dies, it is not only the family members and friends who may suffer pecuniary loss, but also people who had a business or other non-private relationship with the deceased: The employer or business partner may lose the deceased person’s skills and support and suffer severe damage as a consequence, the employees may lose their employer and thus their job, the insurance company may lose premiums, and the shop around the corner may lose one of its 57 58
59
60
61
Austria: Koch/Koziol (fn. 2) no. 81; Switzerland: Brehm (fn. 2) art. 45 no. 34 f. Spain: Martín-Casals/Ribot/Solé Feliu (fn. 2) no. 94; Italy: Gozzi (fn. 9) 193 f.; France: Viney/ Jourdain (fn. 12) no. 327. Viney/Jourdain (fn. 12) no. 311; basically a general Common Law Rule, Davies v Powell Duffryn Associated Collieries Ltd (1942) A.C. 601, 609, but now these benefits are disregarded under application of sec. 4 Fatal Accidents Act 1976; Burrows (fn. 5) no. 29-105. Rogers (fn. 6) no. 67; “a speculative possibility of pecuniary gain is not enough”, Davies v Taylor (1974) A.C. 207, HL. McGregor (fn. 2) no. 36-030 ff.
Wrongful Death and Compensation for Pecuniary Loss
49
best customers. Do these people have claims against the tortfeasor? Again, it goes without saying that there can be no award of damages under compensation schemes that explicitly restrict compensation to loss of maintenance and support, be it de facto support or an obligation to provide maintenance. But what about the other legal systems mentioned? Under English law, no compensation will be awarded.62 This holds true even in cases where the business partner or employer suffering loss happens to be the surviving spouse e.g. where the surviving husband has lost his professional dancing partner and therefore his major source of income.63 This is based on the assumption that there must be an intrinsic connection between the pecuniary loss suffered and the personal relationship listed in sec. 1(3) of the Act.
44
Legal systems without any specific restrictions however, like French or Italian law, seem to be more or less free to award damages also to third parties who had a mere business relationship with the deceased. As far as French law is concerned, courts have so far been very reluctant to do so, mainly by asserting that the damage is not of a “direct” character.64 However, things may be changing, especially as far as claims raised by the victim’s employers are concerned.65 Italian courts have long gone a step further with the famous Meroni judgment where a football club was awarded damages for the death of one of its key players.66
45
D. CRITICAL EVALUATION 1. The Basic Approach to Compensation As far as extra-contractual claims against the tortfeasor are concerned, three basic approaches to compensation for loss of dependency have been identified above: A “separate torts” approach, a “one tort, separate claims” approach and a “claims against the estate” approach.
46
Apart from the fact that its very existence in Europe is not beyond doubt, the “separate torts” approach causes too much uncertainty and makes it next to im-
47
62
63
64
65
66
Von Bar (fn. 3) no. 172; Burgess v Florence Nightingale Hospital for Gentlewomen (1955) 1 Q.B. 349; Malyon v Plummer (1964) Q.B. 330; Burrows (fn. 5) no. 29-93; Rogers (fn. 2) no. 2312. Burgess v Florence Nightingale Hospital for Gentlewomen (1955) 1 Q.B. 349; Burrows (fn. 5) no. 29-93; McGregor (fn. 2) no. 36-024. Radé/Bloch (fn. 12) no. 76; Terré/Simler/Lequette (fn. 30) no. 711; Viney/Jourdain (fn. 12) no. 312. As to French Law see Cass. Civ. 1re, 27 June 1973, Bull. Civ., I, no. 218, 192; Cass., Crim., 15 May 1987, Bull. Crim., no. 198, 533; with regards to comparative law see Von Bar (fn. 3) no. 173; Zweigert/Kötz (fn. 12) 622. Cass. 26 January 1971, n. 174, Foro italiano (Foro it.) 1971, I, 1285; Van Gerven/Lever/ Larouche (fn. 23) 130 ff. This jurisdiction has recently been confirmed by Cass. 24 May 2003, No. 8250, cf. E. Bargelli, Country Report Italy, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2003 (2004) no. 30 f.
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possible to achieve consistency and keep liability within reasonable boundaries at the same time. On the basis of the criteria offered so far, there is hardly a consistent way of showing why the dependent relative should have a claim, but not also the insurer and the gas company who have lost a paying customer.
48
Upon critical evaluation, in particular against the background of a possible future European Tort Law, one must probably say that the “one tort, separate claims” approach, which has been adopted by the majority of European legal systems, is superior. It certainly has the strange outcome that it may be much less expensive to kill a person than just to injure him. Accordingly, it has been challenged by a number of authors, mainly by those embracing an economic analysis of tort law.67 However, there are also good arguments one may put in favour of this solution, and we find a thorough discussion of this issue in the paper written by Professor Koziol (in this volume). The “claims against the estate” approach might lead to an unfair advantage on the part of the estate. It might even create perverse incentives for the prospective heirs. Furthermore, the dependants would have to raise claims against the heir or heirs, who are often family members as well, and the heirs would have all the trouble that may go along with facing a variety of maintenance claims. 2. How to Draw the Boundaries
49
Under the schemes that adopt a “one tort, separate claims” approach, three basic models of how to draw the boundaries of liability have been identified: A “de facto support” model, a “statutory list” model and an “entitlement to maintenance” model.
50
The “entitlement to maintenance” model should be rejected because the principles underlying family law are quite different from the principles underlying the law of tort and thus the elements that have to be satisfied for a maintenance claim under family law need not be met for a claim in tort. Therefore, this model will always cause severe hardship in a number of cases. A pure “statutory list” model does provide for certainty of the law and will lead to satisfying results in the majority of cases, but it will necessarily cause hardship in some exceptional cases not covered by the list. So, in the end, I prefer a “de facto support” model in conjunction with a non-exhaustive statutory list or at least some clarifying words as to who might count as an entitled person.
51
Upon careful consideration, I think it is correct to restrict compensation to maintenance and support and not to include the loss of other prospective benefits. If, for very good reasons, third parties who are only indirectly affected cannot rely on the general provisions establishing liability in tort, we should accept this result. However, I would like to include the loss of “indirect support”, for example of social security benefits a family member received during the victim’s lifetime. Also, funeral expenses should be covered.
67
G. Schieren in: Journal of Forensic Economics 11 (1) 1998, 33 ff.; Von Bar (fn. 3) no. 47.
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51
E. CONCLUDING REMARKS In the end, I would like to mention that I have arrived at almost exactly the same conclusion as has been adopted by the European Group on Tort Law in Art. 10:202 par. 2 PETL. As I have just indicated, I would prefer to include also funeral expenses and forms of “indirect support”, like social security benefits, which were not provided directly by the deceased but which were intrinsically linked to his existence as someone who is working and earning his living. But apart from these minor issues, I think that Art. 10:202 PETL is not only compatible with the findings of comparative law, but that it also reflects the best solution available, bearing in mind that it is never really satisfactory to deal with life and death in pecuniary terms.
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III. Death and Non-Pecuniary Loss W.V.H. Rogers1
1
My topic is non-pecuniary loss in the context of fatal accidents. That phrase may not be very familiar to all of you but it is the terminology which we finally arrived at when the European Group on Tort Law and ECTIL were looking at damages. I am afraid it is a rather pale and wan phrase alongside its German equivalent of Schmerzensgeld. Most people naturally gravitated towards the Americanism “pain and suffering” but we thought that was not quite right. Remember that we were also concerned with the position of the living victim of an accident and that phrase seemed to ignore the fact that in many systems a significant part of such damages was in fact attributable to the objective loss of function (or as the English say, loss of amenities of life) rather than the suffering of the claimant – as witness the fact that a number of systems are willing to award substantial damages under this head to victims who are in a permanent coma. An alternative would of course have been non-patrimonial loss but my colleagues were understanding enough to accept that that would have meant nothing at all to the ignorant Anglo-Saxons. Of course in the context of death and third party claims we would be closer to the sense of pain and suffering, though even here the real sense would be grief and bereavement. So “non-pecuniary loss” it was. If you want to think of it as Schmerzensgeld or dommage moral or daño moral then please do so.
2
As far as I know, no European legal system now rejects damages for non-pecuniary loss in personal injury cases, though there are considerable variations in conceptual approach and in the amounts awarded. About 40 years ago Maltese law rejected such damages and that led to one of the most famous English private international law cases, Chaplin v Boys2. I do not know what Maltese law now is. Malta has a quite extensive array of online legal materials but as is always the case they are mainly concerned with “doing business in Malta”, the European Group on Tort Law never had a Maltese representative and my Maltese is not, I am afraid, up to penetrating below the surface. However, the differences between the systems on non-pecuniary loss are very marked in fatal accident cases.
1 2
This is a talk given at the Annual Conference on European Tort Law 2007, Vienna, April 14. [1971] Law Reports (Appeal Cases) AC 356.
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There are two basic heads of loss here:
3
1) The deceased person’s loss and 2) The loss of persons linked to him – third party loss. However, the second category breaks down further. Some systems simply give the third parties damages based on the bereavement; others will only award non-pecuniary loss damages to the third party if he has himself suffered some injury to his health, something more than mere grief.
4
1. The Deceased Person If the deceased is killed instantaneously and does not endure a period of suffering before death the almost universal position when we looked at this in 2000 was that his estate acquired no claim to damages for non-pecuniary loss, even in systems which allowed such claims to be inherited. Although the deceased’s life had been shortened he was never conscious of that. The theoretical position was somewhat doubtful in Spain, some writers asserting that since death is the worst possible injury and must therefore lead to a right to compensation which the deceased acquired at the moment of the injury. However, the theoretical position was somewhat academic since the Civil Chamber of the Tribunal Supremo had consistently taken the line that such claims did not pass to the heirs of the deceased.3 There was a time when English law toyed with the idea of damages for the estate of the deceased person in the aftermath of the Act of 1934 which allowed tort claims to survive death. However, they quickly settled on a conventional sum for what was known as “loss of expectation of life” set at £ 200. That would be about € 8,500 today so it was not trivial but the figure never kept pace with inflation and was abolished in 1982. Since the damages would normally pass by inheritance to near relatives they formed a sort of de facto solatium for bereavement and when such damages were directly introduced in 1982 loss of expectation of life lost its purpose.
5
So if you manage to kill your victim outright you will pay a great deal less than if you put him in a hospital bed for years. That is so even if he has dependants because the law takes account of what he saves by being dead, if I may put it that way. And if you manage to pick a victim who has no dependants you will escape liability for pecuniary loss, too and probably end up paying not much more than funeral expenses. That appears to be something of a paradox: the greater the injury, the smaller the damages. Furthermore, as far as nonpecuniary loss is concerned it sits a little uneasily with the readiness of some systems to award substantial damages to a victim who is in a permanent coma. The economist, too, might object at the result since for him prevention is the primary function of tort law so a system of liability which awards minimal damages for the most serious injury of all under-deters. Some suggest that damages for a fatal accident should be based on the value of a statistical life and I have seen figures between $ 4 million and $ 9 million. I have no idea
6
3
M. Martín-Casals/J. Ribot/J. Solé, Spain, in: W.V.H. Rogers (ed.), Damages for Non-pecuniary Loss in a Comparative Perspective (2001) at [32].
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how these are arrived at and, while I fully accept that the deceased attached a value to his life – a value beyond rubies – I think you might find it hard to sell such a proposal to a lawmaker. While I am sure tort law has a deterrent function I see that as largely a by-product of its principal aim of compensation and I cannot quite go along with the idea of one’s life as a piece of property. As to the supposed analogy of the comatose victim I suspect our treatment of him stems from a combination of unwillingness to treat a living person as if he were dead and a degree of uncertainty about what the future will hold for him. This may not be very logical but as one English judge (who was opposed to the award of such damages) said,4 it is a case of la couer a ses raisons que le raison ne connaît point. As Steininger says in the 2005 Yearbook,5 a propos of an Austrian case rejecting damages for loss of expectation of life, the comatose victim is a borderline case anyway and you should not use it as a launch pad to travel even further.
7
Even if death follows almost instantly from impact there is of course the possibility of suffering acute fear in the brief interval between the appearance of the danger and its impact. You might think that the most obvious scenario, that of passengers in a doomed airliner, is probably not going to arise since the predominant view around the world is that lesion corporelle in the Warsaw Convention does not include even mental injury amounting to an illness, let alone mere anxiety or fright. However, those are cases where they thought there was going to be a crash and there was not. Where the crash occurs American cases consistently hold that the Convention is no bar to recovery for pre-death fear. Anyway, other situations are possible, for example the fear suffered by the spectators in the Hillsborough football stadium disaster in the period before they were crushed to death. In 2000 the answers tended to be tentative (except in England, where it was a clear No – Hicks v CC South Yorkshire6) for lack of a directly applicable case but it will not surprise you that the response of Austria and Germany was distinctly negative but the idea was looked on more favourably in France and Belgium, with their open textured approach to dommage moral. Of course in a system which does not allow non-pecuniary loss damages to pass by succession this is a non-issue. So called pre-impact fright damages are widely allowed in the United States in fatal accident cases. There is a good survey in the Maryland case of Beynon v Montgomery Cablevision7, where the jury had awarded $ 1 million, reduced to $ 350,000 because of a legislative cap on non-pecuniary loss damages. I find it hard not to agree with the dissenting judges, who said that “the jury’s actual award amounted to at least $ 400,000 per second of fright, later reduced to $ 140,000 per second of fright. The problem, however, is not simply one of amount. Whether the award is great or small, when grounded on nothing more than skid marks or other evasive action, it can only be a sympathy verdict based not on any substantial 4 5
6 7
Diplock LJ in Wise v Kay [1962] 1 Law Reports, Queen’s Bench (QB) 638. B.C. Steininger, Austria, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2005 (2006) at [39]. [1992] 2 All England Law Reports (All ER) 65. 718 A 2d 1161 (1997).
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evidence of fright but rather on a desire either to compensate the decedent’s beneficiaries for his or her death, beyond what is allowed in a wrongful death action, or to punish the wrongdoer.” Such damages seem to me to be totally unassessable on any rational basis and I think the best course is simply to reject them altogether (though I would not rule out taking a different approach in cases of intentional wrongdoing). Where there is a significant interval between injury and death it is impossible to deny that the victim has, for a period of time, suffered something comparable to that suffered by the long term injured. But the victim has died before damages have been recovered and the question resolves itself into whether the claim passes to his successors. It could of course be argued – indeed it is a very respectable case – that if the purpose of such damages is to allow the claimant to buy alternative pleasures they should not pass but again that would be inconsistent with how some of us treat the comatose victim. Most of us allow such claims to pass, though in a few cases we only do so if the deceased started proceedings in his lifetime or (as in the case of the Netherlands) he announced his intention to do so. Germany moved from that position by statute to allowing full succession in 1990. I do not know the background to that change. In England we probably did not think about the issue at all when we provided for the survival of tort claims in 1934 – we probably just regarded it as a necessary consequence of the transmissibility of the deceased’s claim.
8
Then there is the person who is alive to bring his claim but his life is blighted by the knowledge that he faces the prospect of premature death from his injuries. I think it would be hard to deny that claim, though I accept that there is no scientific way to assess it. But there is a bigger problem coming over the horizon. A person is exposed to some toxic agent and has at present suffered no traceable physical injury but his life is blighted by his belief that he will now die prematurely because of the exposure. Answers to this conundrum in 2000 were generally speculative but since then the issue has been squarely raised in England in Rothwell v Chemical and Insulating Co Ltd 8, currently on appeal. The claimants suffered pleural plaques from exposure to asbestos. These are harmless and symptomless in themselves and do not develop into any malignant condition. But they do indicate that the body has been penetrated by asbestos fibres and signal an increased risk of asbestosis. The court held that at the moment there was no claim. Neither the pleural plaques themselves nor the anxiety suffered because of them was damage and some damage, not merely the risk of it, was necessary to found a cause of action. That, I believe, would also be the position in Germany or Austria. But one of the claimants had developed a clinical depressive condition which was a recognized illness and the law accepts that such an illness can be damage. Was his case different? Again No, said the court, in line with the decision of the Irish Supreme Court in Fletcher v Commissioner of Public Works9. The risk of an asbestos related condition on the facts was very small and the claimant had been so advised so his extreme
9
8 9
[2006] Court of Appeal (Civil Division) EWCA Civ 27. [2003] Irish Reports (IR) 465.
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reaction was unnatural and therefore unforeseeable. There are some difficulties in squaring that with the general English approach to the thin skull rule in the context of psychiatric injuries but presumably the result would have been different if the risk of an asbestos related condition had been substantial. 2. Persons Linked with the Deceased
10
A number of European systems grant damages for the mental suffering consequent on the death of persons closely linked to the deceased and without any requirement that there be a medically recognized illness.
11
The simplest system – or if you prefer, the crudest – is that of England. By statute, dating from 1982, spouses and registered same sex civil partners have a claim for a fixed statutory sum for bereavement of £ 10,000 (about € 15,000) in respect of the death of the other partner. The same goes for the parents of a minor child who has not married, in which case the sum is shared. That is it. There is next to nothing else to say.10 No evidence of actual grief is needed, the claim is based purely on the relationship. It is the modern version of the dark age Germanic wergild. The only circumstances in which the damages can be reduced is on account of the contributory fault of the deceased, since the statutory claimants are for all purposes “identified” with the deceased. The range of eligible claimants is much narrower than the range of people who may claim for pecuniary loss suffered as a result of the death.
12
“Give an inch and they take a mile” the old saying goes, or “give him your finger and he’ll take the hand” as the Germans have it. Not longer after this system had bedded down the Law Commission proposed that it be extended to cover (as claimants) children, siblings, cohabitants and engaged persons with a global ceiling of € 50,000. I am pretty sure this will not be implemented but it would take us close to the Franco-Belgian position where there is no fixed list of entitlement but persons who have ties of affection with the deceased may claim for the non-financial impact of the death on them. I believe that in France the presumption of affection which would arise from a family relationship is in theory always rebuttable so the defendant might get somewhere if he could show that the deceased’s spouse had planned to murder him, but in practice little or nothing in the way of proof of emotional disturbance is required, so there are elements of the wergild here, too. So in a case in 199611 the appeal court had rejected the claims of the uncles and aunts of the deceased on the ground that they had shown no special relationship of affection with him but this was quashed by the Cour de cassation. I have no up to date figures but I am told that about 20 years ago a fatal accident led to an average of 5.3% awards for prejudice d’affection. Individually, the sums involved are not large but they add up. At the moment there is no specific text on this matter. The avant-projet 10
11
At least as far as mainstream tort law is concerned. But it seems the position may be different under the Human Rights Act 1998: Van Colle v Chief Constable of Hertfordshire [2007] EWCA Civ 325. Cass Civ 2e, 16 April 1996.
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on the reform of the Code civil12 does say something about it in Art. 1379. “Les victimes par ricochet ont droit à la réparation de leurs prejudices économiques consistant en des frais divers et pertes de revenus ainsi que de leurs préjudices personnels d’affection et d’accompagnement.” But that does not tell us any more than we know already from the case law. Coming from a system with comparatively expensive litigation I tend to look on these things in terms of the cost of adjudication and settlement and from that point of view such an open-ended approach, while having the virtue of flexibility, is at the expensive end of the spectrum. Hence in Greece, where a broadly similar approach is adopted, the question of the meaning of the “members of the family of the victim” under Art. 932 of the Civil Code seems to come before the Supreme Court with remarkable frequency. There are no fixed tariffs but damages can be quite substantial: one decision would have awarded € 88,000 to a spouse had it not been for the 50% contributory negligence on the part of the deceased. In 2005 the court rejected a claim from a long term cohabitee,13 which looks surprising when you take into account that the claims of people like mothers-in-law and sons-in-law are admitted. However, this is no doubt a matter which turns on how far the Greek code as a whole singles out the legal institution of marriage for special treatment so it is not for an outsider to comment solely in the context of tort law. I was not surprised at the decisions in 2005 that a two year old had not reached the stage of emotional development to feel grief at the death of a relative (and a fortiori that the same was true of someone who was a foetus at the time) but I was surprised at the supplementary holding that they could recover damages for the non-pecuniary loss they were bound to suffer in the future.14 I just wonder whether this is a case of logic getting the better of common sense. One close relative of mine died just before I was born in 1944, another a few months after I was born. I simply grew up aware that they had died. They were not the victims of torts, they just died of natural causes but I would be surprised if I had felt a sense of grievance if I had discovered that they had been killed in a road accident.
13
At the other end of the spectrum of course we have Germany and the Netherlands, which simply do not allow any such claims, though the Dutch have been hovering around changing this for a good while now. Austria currently occupies a middle ground which, so far as I know, is only shared by Finland, though in Austria that may change in the future as a result of a legislative reform proposal.15 The Austrian position is that generally speaking relatives have no claim for non-pecuniary loss but they do if the death was caused by gross negligence or intent. By the way, going back to the Greek infants, three cheers for the Austrian Supreme Court on 12 May 2005 in refusing leave to appeal to a seven month old baby who had unsuccessfully claimed € 15,000 for the
14
12 13
14 15
“Rapport Catala” 2005. See E. Dacoronia, Greece, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2005 (2006) at [62]. Ibid. See B.C. Steininger, Austria (Appendix), in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2005 (2006).
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harm he would suffer at having to grow up without a grandfather.16 Austria has bred a governor of California: maybe Austrian claimants are acquiring Californian ideas. Of course there are always cases at the edges which make you pause. Take a Finnish decision on 15 January 2004.17 A five month old child’s mother is murdered. Can the baby recover damages for mental anguish? The defendant’s appeal against a decision to allow it is not attractive but I think the Supreme Court was right to say there was no liability. No doubt the interaction between the mother and the child is very important for the child’s development but the statutory provision is directed at anguish caused by the absence of the deceased and the child cannot at that age comprehend the reason for the absence or suffer any emotion directly comparable to that of a bereaved adult.
15
If you want my personal opinion on all this I think the Germans have it right and the English took a wrong turning in 1982 in joining the other club. This seems to me the sort of compensation which is well down the priority list. I can live with the English position even if it may have been a mistake. But once you take it beyond fixed sums for a very narrow range of people it starts to look like a rather undignified closing down distribution with money being shared out among a whole gaggle of people who, according at least to my experience of life, are very unlikely to suffer any very serious trauma. And if we make it turn on the intensity of the grief you did suffer, how on earth are we going to adjudicate on that at modest cost?
16
Of course I am in a minority of one. Both PETL and the von Bar Study Group proposals include provisions allowing recovery to persons having a close relationship with the deceased and would extend these to cases where the direct victim was injured rather than killed (though in the case of PETL the injury has to be “very serious”). The recovery of damages by relatives in non-fatal cases seems to me to present problems of a wholly different dimension to those in fatal ones. Injury cases very substantially outnumber death cases. While one might argue that the experience of bereavement was similar for all mankind I doubt if you could say that about the experience of living with an injured person so one could not really adopt fixed statutory amounts. Coming back again to my worry – you may think it is an obsession – about the cost of handling these things that has serious implications for claim handling costs. So if I am not an enthusiast for bereavement claims for relatives you will not be surprised that I have even less enthusiasm for awards of this type. But again I have to say that I am in a minority. If you wanted to convert me you would no doubt rely on the case in the Portuguese Supreme Court on 8 March 2005.18 The husband suffered catastrophic injuries in a road accident at the age of 27 and his 25 year old wife had to look after all his needs and lost the prospect of a normal family life, including the prospect of further children. He recovered € 250,000 16 17
18
Ibid. at [44]. See S. Hakalehto-Wainio, Finland, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2004 (2005) at [12]. See A.G. Dias Pereira, Portugal, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2005 (2006) at [34].
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for non-pecuniary loss and € 265,000 for pecuniary loss. The wife recovered € 40,000 for non-pecuniary loss. There also appears to have been a further sum awarded to the wife for pecuniary loss though it is not disclosed in the report I have so was presumably not very great in comparison. The decision was apparently ground-breaking because before that damages had only been awarded to relatives in fatal cases. Now it is always dangerous to comment without knowing all the facts but the following points strike me about this case. The € 250,000 to the husband for non-pecuniary loss strikes me as not ungenerous. Nominally it is about 75% of what you might expect to get in England so in real terms it is probably rather more since adjusted incomes in Portugal in 2005 seem to have been about 60% of those in the UK. But the pecuniary loss award seems very low. Of course I do not know the details of the husband’s income or his life expectancy but he was a skilled tradesman, a mason, so he was presumably not on the breadline. Nor do I know how far his pecuniary losses were made up by social security or exactly what Portuguese law does about offsetting those against damages. What I can say, however, is that in England a long term catastrophe case like this in which non-pecuniary loss was 94% of the sum for pecuniary loss would be truly extraordinary. You would expect the ratio to be more like 20% or even 10%. One factor that would push the pecuniary figure up would be the fact that in addition to the loss of income there would be a claim for the nursing and home care which, if it were provided gratuitously by a previously non-working wife, would probably be assessed at around 75% of the commercial rate. It is quite common for cost of care damages substantially to exceed lost earnings damages. If the wife is in effect getting “paid” for looking after her husband and there is already a substantial sum for non-pecuniary loss coming to the husband, I would be less inclined to worry about the wife’s independent claim for this, though of course I accept that the two things are conceptually different. It may sound mean-minded to object on such facts but this could be the end of a very long wedge. As Bernhard Koch said in 2005, the general theme of non-pecuniary loss seems to be “More claimants, higher amounts”.19
17
Finally of course there are the cases in which the injury to the direct victim, fatal or not – or even the perceived threat of such injury – causes actual injury in the form of illness to persons who have close links with him. The cases are grouped under the not very accurate rubric of “nervous shock” by the English. Now even those who do not grant damages for bereavement at all recognize that there is a claim, though the criteria vary quite substantially. However, this really strays outside my brief because now liability is not confined to nonpecuniary loss: the relative is not now a ricochet victim, he is the victim of a tort in his own right, so to speak (though in some systems his claim may be to some extent linked with that of the direct victim, for example some systems link the contributory negligence of the direct victim into the claim of the secondary shock victim). If I progressed through all this that would take another
18
19
B.A. Koch, Comparative Overview, in: H. Koziol/B.C. Steininger, European Tort Law 2005 (2006) at [29].
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couple of lectures but I cannot resist drawing your attention to an extraordinary Finnish case.20 A breaks into his ex-wife B’s apartment and threatens B and her male friend C with a shotgun. A kills C and mutilates the corpse. B suffers a mental breakdown as a result not of fear for herself but what happened to C. Under the relevant Finnish statute certain close relatives are entitled to what resemble bereavement damages where the death was caused intentionally or by gross negligence but B’s relationship with C was not close enough to qualify. However, the claimant recovered under another, general provision allowing the direct victim of a tort to recover damages. The killing and mutilation of C could be regarded as at least in part directed at B and designed to cause her anguish.
20
J. Norio-Timonen, Finland, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2003 (2004) at [28].
IV. Wrongful Death: How Much Does It Cost to Kill Someone? Bernhard A. Koch* As the admittedly provocative subtitle suggests, the consequences of wrongful death will be looked at from a slightly different angle as compared to the other contributions on this topic contained in this volume. Since it was meant to be more of a summary than a substantive analysis, references to these other papers will be made throughout.
1
Mankind struggles with the question whether there is life after death. Tort law restates this in more worldly terms by asking whether there is money after death. At first sight, tort law seems to be inconsistent, though: We have no problem to pay out money to indemnify the loss or destruction of things, even though we may discuss how to calculate that loss. Animals are even further protected: Not so long ago did we witness legislators feeling urged to change the definition of things in the civil codes.1 But if there is a price tag on animals determining how much we cash in if one of ours is killed, why do we not get a corresponding amount of money if we lose our life? Why do family members not get paid for the loss of someone who “belonged” to them?
2
The obvious response is that we as humans cannot be owned, at least ever since slavery was abolished. Proprietary interests in human life are therefore excluded. One is not even free to dispose of one’s own life – most legal systems preclude the choice to end one’s life even in case of severe fatal illness. A logical follow-up question therefore is whether killing someone violates any other legally recognized interests which can be compensated in money.
3
This leads us to the necessary distinction between interests attributed to the deceased herself as contrasted to interests of third parties in the survival of the injured person which were devastated by the killing.
4
* The author would like to point out that the following was designed as an oral presentation for a
1
live audience. Neither text nor structure have been altered substantially for publication purposes, and footnotes have only been added where necessary. Cf., e.g., § 285a Austrian Civil Code (ABGB), § 90a German Civil Code (BGB), and Art. 641a Swiss Civil Code (ZGB), all stating that “animals are not things”.
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5
Focusing on the immediate victim is important for dogmatic reasons, but for practical purposes, the interests of the deceased are part of her estate and will therefore ultimately be pursued by her heirs.
6
Possible third parties whose own interests may have been harmed include, of course, the family members (though it is open to debate what we understand as “family” and where to draw the line there2), furthermore friends and others close to the deceased who fall outside the scope of the first subgroup. These are not the only ones, however, who themselves may suffer a loss by the death of someone else – just think of an employer who loses the workforce of the deceased, at least for the time until a replacement has been found. Further third parties are also imaginable, but I will leave those out for the purposes of this summary.
7
One important aspect I would like to stress already at this point is the potential degree of overlap between the two groups of claimants: The heirs of the deceased may be family members, but not necessarily so. This distinction should be borne in mind, as it is essential to differentiate between claims arising from a family relationship and claims that are simply passed on by way of inheritance.
8
Choices to compensate the one and not the others may be distorted by a misconception of how much these groups actually overlap: Acknowledging a claim of the deceased of her own right does not automatically lead to payments to family members, since they simply may not (all) be the heirs of the deceased. So if she had supported them before her demise, their maintenance is not effectively taken care of by shovelling money into the estate, even if they should have a claim for support against the latter. On the other hand, the mere unavailability of damages for the victim’s own loss does not per se justify an increase of the awards to third parties, which should be calculated according to standard criteria. Furthermore, one needs to make a policy choice whether monies received from the estate should be deducted from the amount of damages claimed by the heirs out of their own right as third parties.
9
One may of course argue that the deceased would have increased her estate had she lived longer, which ultimately would have benefitted the heirs. However, that expectation has to be seen independent from the interests attached to the estate as such, so that it would have to be dealt with under the third parties category.
10
Another separate type of interests is sometimes mentioned in discussions about the consequences of wrongful death, particularly in economic analyses: The death of human beings causes a loss to society at large in general and to its welfare in particular. This may be true, but does not help us here: Apart from the fact that I fail to see how society shall collect damages, this phenomenon applies to all tort law cases since any variety of harm at the same time interferes 2
See Ch. Wendehorst (supra 35) no. 25 ff.
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with welfare, at least until the balance is re-established, e.g. via tort law. But that effect on society should not be confused with its cause, which concerns individual interests. Let us first look at possible claims by third parties, which are easier to grasp with traditional tort law reasoning.
11
Relatives and (possibly) others may have had a maintenance claim against the deceased had she survived. Whether or not these claims are redirected against the tortfeasor via the estate or directly is a technicality which as such does not change the fact that the dependants ultimately will be indemnified for the discontinuation of payments by the deceased caused by the tortfeasor.
12
Personal harm to third parties triggered by the killing of the immediate victim equally fits well into traditional tort law systematics, as do pain and suffering and other non-pecuniary losses suffered as a secondary consequence of these direct injuries.
13
Non-pecuniary harm caused directly by the death of the direct victim without any intermediary physical injury to the third party such as grief is also unproblematic, even though many legal systems have long struggled with it (and some continue to do so): The problem is not so much how to find a link in tort law between the tortfeasor and the third party claimant, but rather whether this link is deemed strong enough to be recognized.
14
The same is true for potential claims by the employer, where that decision invariably goes against the claimant, as it does in cases of “mere” personal injury of the direct victim.
15
But what if the deceased has no relatives and is unemployed – will the tortfeasor walk away for free (thereby disregarding for the time being costs of the death per se such as funeral expenses and the like)?
16
This brings us to the more problematic part, i.e. to the question whether the immediate victim herself incurs any loss by her own death. Certain costs may of course have arisen in the course of trying to rescue her, or for securing the corpse. But what about the loss of life as such, which is sometimes referred to as “hedonic damage”3? Is the right to live as such an interest which tort law shall protect?
17
I shall thereby disregard the added problem if the victim is not killed immediately: In such cases, one might argue that she has already experienced a reduction of her life expectancy while still alive, which leads to a claim for compensation that survives death: This is only avoiding the true issue whether that interest shall be indemnified at all, irrespective of the victim’s temporary,
18
3
See, e.g., V. Schwartz/C. Silverman, Hedonic Damages: The Rapidly Bubbling Cauldron, Brooklyn Law Review 69 (2004) 1037.
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but ultimately accidental survival, seen from the fatal cause. By the way, what we really compensate if a victim does not die immediately is not the nonpecuniary value of her life, but the consequences upon her remaining life, in particular fear of dying and other sentiments, which must not be confused with the value of life as such.
19
At first sight, one is inclined to confirm that the loss of life’s pleasure is a harm which deserves compensation. After all, what more can you lose than your own life? At second thought, however, one has to face the fact that this response may be noble, but does not get us any further: The victim may indeed have suffered a loss, but how shall tort law react thereupon? Its primary function – compensation – is bound to fail, as the victim is no longer there to cash the check. Shall we pass it on to the estate and therefore to the heirs as some sort of special bonus? How shall we calculate that bonus?
20
Economists operate with the so-called “value of a statistical life” (VSL).4 They claim that this is not the value of a human being as such, but rather the cost of being subject to the risk of death. It is calculated on the basis of how much potential victims would be willing to invest in order to avoid an increase in their individual risk to die.
21
The current VSL calculated as an average of several studies is approximately 7 million USD.5 If this were what a tortfeasor has to pay for killing someone (thereby disregarding further consequences such as criminal charges), Bill Gates could therefore buy 8,000 people’s lives with his current assets.6
22
However, this average is derived from a wide range of differing results of numerous surveys, ranging from one tenth to more than triple the average. This wide gap is not surprising in light of the uncertainties and distortions affecting the reliability of such studies, apart from the fact that those interviewed cannot seriously be expected to give reasonable responses to such questions, if only due to their likely misapprehension of their individual risk situation. Furthermore, it is entirely unclear what factors should influence the individual value figure, if it should be individualized at all, which even those who promote the VSL concept have not yet resolved among themselves.
23
Apart from such difficulties of measuring the extent of such a loss in monetary figures, there are more fundamental arguments against recognizing such claims, which – again – would mean that any moneys paid out in compensation would flow into the heirs’ pockets: The right to live is a strictly personal interest which cannot be transferred onto someone else – the decision to exercise (or terminate) that right is even taken from its immediate holder. 4
5 6
Cf., e.g., W.K. Viscusi/J.E. Aldy, The Value of a Statistical Life: A Critical Review of Market Estimates Throughout the World, Journal of Risk and Uncertainty 2003, 5; E. Posner/C. Sunstein, Dollars and Death, University of Chicago Law Review 72 (2005) 537. Cf. Viscusi/Aldy (fn. 4) 18. Forbes estimates his current net worth at $56 billion: http://www.forbes.com/lists/2007/10/07 billionaires_William-Gates-III_BH69.html.
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If we reduce the question to the deceased’s earning capacity, I can only repeat what Helmut Koziol has already stressed:7 The heirs would never cash in that asset if the deceased died naturally, so why should they collect that extra payment if her death has been caused by a tortfeasor?
24
It admittedly sounds odd to collect damages from the tortfeasor only if there are dependants and other third-party claimants. If there are no surviving people falling into that group, it may indeed run afoul of the deterrent effect of tort law since the tortfeasor may then be off the hook without any payments due. However, in such cases there will typically also be no heirs to enter on an inheritance, so the only one left as a possible claimant may be the state who has better – and more direct – ways to effectuate deterrence.
25
Coming back to my initial provocative question, I admit that it cannot be answered in Euros and cents, even though I did mention a few figures above. Lucius Veratius8 would hence be disappointed.
26
My point is that there simply is no flat-fee solution which applies to all cases of wrongful death. Very often, the tortfeasor will of course have to compensate certain losses, but these should be calculated individually, though naturally on the basis of uniform standards. But there may be cases where there simply is no loss to indemnify, and that result as such does not devastate the entire structure of our tort law building as is sometimes claimed.
27
The question therefore needs to be rephrased to: “Which interests deserve compensation in case someone is killed?”, and the answer thereto should not include a minimum flat fee allegedly in exchange for the life of the deceased.
28
Tort law’s response to wrongful death should primarily be achieved by recognizing a certain range of third-party claims. This seems to be the only option within tort law that does not cross its boundaries. Problems of underdeterrence should be resolved elsewhere, and this is not wishful thinking: What is hardly ever mentioned in the economic literature is the wide range of other ways the law tries to effectuate the right to live. Why, for example, complain about the lack of tort law claims under certain conditions if the tortfeasor has to answer for his wrongdoing before a criminal court? It is the interaction of law as a whole that should be the starting point for further considerations on how to update the law relating to wrongful death.
29
7 8
H. Koziol (supra 28) no. 14. Lucius Veratius was a rich Roman who slapped complete strangers in their faces and immediately had them pay the statutory amount of damages foreseen for such harm: Gellius, Noctes Atticae 20.1.13.
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Reports
I. Austria Barbara C. Steininger*
A. LEGISLATION 1. New Austrian Tort Law Draft
1
As reported in the previous Yearbook, an unofficial draft for a new Austrian tort law was published in 2005.1 In 2006 the discussion process that started in 2005 continued and the draft was intensely discussed at several conferences and in various articles.2 The draft is currently being revised with regard to the results of this discussion process and could then form the basis of an official ministry draft. 2. Änderung des Luftfahrtgesetzes und des Bundesgesetzes über den Zwischenstaatlichen Luftverkehr 1997 (Act Changing the Aviation Act and the 1997 Federal Act on Interstate Air Traffic)3
2
With the present Act4 the Austrian aviation liability and insurance regime is adapted to the Montreal Convention and some EC regulations.5 While the main changes relating to liability law are to be found in the field of contractual liability, §§ 148 ff. of the new Luftfahrtgesetz (Aviation Act, LuftfahrtG) also provide for some changes to the rules on liability towards third persons. As in * I would like to thank Donna Stockenhuber for proof-reading the text. 1
2 3
4
5
For a description of the draft and an English translation see B.C. Steininger, Austria, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2005 (2006) 118 ff., 142 ff. Cf. below C, no. 70 ff. Bundesgesetzblatt (Federal Law Gazette, BGBl) I 88/2006, 23 June 2006. Available at http:// www.ris.bka.gv.at/bgbl-pdf. Austrian legislation is available at http://www.ris.bka.gv.at/ bundesrecht. See generally M. Aufner, Das österreichische Luftfahrt-Haftpflichtrecht auf neuem Kurs, Zeitschrift für Verkehrsrecht (ZVR) 2006, 349. Regulation (EC) No. 889/2002 of the European Parliament and of the Council of 13 May 2002 amending Council Regulation (EC) No. 2027/97 on air carrier liability in the event of accidents, OJ L 140, 30.5.2002, 2–5; Regulation (EC) No. 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators, OJ L 138, 30.4.2004, 1–6; Regulation (EC) No. 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No. 295/91, OJ L 46, 17.2.2004, 1–8.
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the past, this liability is strict and will not even be excluded by force majeure.6 The keeper of an aircraft or an aviation apparatus which can be flown autonomously will be liable in relation to persons or things not transported by the aircraft or apparatus. According to § 11 LuftfahrtG, the term aircraft includes all vehicles capable of moving persons or things in the air without a mechanical connection to earth, irrespective of whether they are heavier than air (like e.g. airplanes, helicopters, paragliders or parachutes) or lighter than air (like e.g. airships or free balloons). According to § 22 (1) 2, the second term refers to apparatus which can be flown autonomously but which are not covered by the term aircraft, like e.g. captive balloons. The liability for such aviation apparatus has been newly included in the present amendment, while up to now only motorised model aircraft was included in addition to aircraft.7 For the strict liability of the keeper of the aircraft or the aviation apparatus caps between SDR 750,000 and 700,000,000 are foreseen in accordance with the minimum insurance sums provided for in regulation (EC) No. 785/2004.8 For hanggliders, paragliders, parachutes or aviation apparatus which can be flown autonomously of less than 20 kg of weight,9 the cap will amount to SDR 500,000. In all it can be stated that, as far the amendment relates to noncontractual liability for persons or things not transported, the Act brought about only limited changes.
3
3. Gesundheitsrechtsänderungsgesetz (Act Changing Health Law)10 Among several changes to health law, the present Act introduces a so-called “solidary” fund for the financial support of victims of wrongful and faulty acts committed by freelance physicians. The fund has to be instituted by the Austrian Medical Chamber and aims at supporting patients who, notwithstanding the wrongful and faulty conduct of the physician in question, have no prospect of obtaining other adequate compensation within a reasonable time period. However, patients have no subjective right to receive money from the solidary fund.11 To the amount of payments made by the fund, the Austrian Medical Chamber is subrogated to compensation claims of the victims. Further details have to be regulated by the Austrian Medical Chamber.
6 7
8 9
10 11
See Aufner, ZVR 2006, 353. Regierungsvorlage (government bill, RV), 1429 Beilagen zu den stenographischen Protokollen des Nationalrates (BlgNR) 22. Gesetzgebungsperiode (legislative period, GP) 10; Aufner, ZVR 2006, 352 f. RV 1429 BlgNR 22. GP 10. Compare Art. 2 (2) regulation EC No. 785/2004 mentioning devices not covered by the regulation. BGBl I 122/2006, 26 July 2006. Available at http://www.ris.bka.gv.at/bgbl-pdf. See G. Aigner in: G. Aigner/A. Kletečka/M. Kletečka-Pulker/M. Memmer, Handbuch Medizinrecht (2006) III/50.
4
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B. CASES 1. Oberster Gerichtshof (Austrian Supreme Court, OGH)12 7 March 2006, 5 Ob 165/05h13: Duty of Disclosure, Wrongful Birth a) Brief Summary of the Facts
5
The defendant, a gynaecologist, had performed an ultrasound test on the plaintiff during the 23rd week of her pregnancy. In the course of this test, the defendant detected non-specific indications of irregularities. As a clear diagnosis was not possible with his (state of the art) equipment, the defendant referred the plaintiff to a specialist clinic for further tests. He gave her a letter of referral and, although he emphasized that the plaintiff should go to the specialist clinic, the plaintiff did not go there. Only after a two month period were the necessary tests performed and the unborn baby diagnosed with Down’s Syndrome. At that time (32nd/33rd week of pregnancy) an abortion was no longer possible, as abortions are factually only performed until the 24th week in Austria.14 The plaintiff claimed compensation for the child’s maintenance costs. b) Judgment of the Court
6
The 5th panel of the OGH held the defendant liable for the entire maintenance costs. The OGH argues that doctors who realize that certain medical actions are necessary have to inform their patients about this necessity and the risks of omitting to perform these medical actions. According to the OGH, the same must be true for the necessity of further examinations. The OGH holds that, in order to enable the plaintiff to make an autonomous and self-determined decision regarding further tests in the specialist clinic, the defendant would have had to state clearly that without the test, the plaintiff might not be able to prevent the birth of a mentally and bodily disabled child. Moreover, the defendant, in the view of the OGH, would have had to inform the plaintiff about the risk of a chromosome aberration.
7
The OGH referred the case back to the court of first instance to verify, amongst others, whether the plaintiff would have had an abortion; with which words the plaintiff commented on the ultrasound test and why the plaintiff did not go to the specialist clinic although she had been told to do so. Only on the basis of this additional fact finding does the OGH consider it possible to assess 12 13
14
Decisions are available at http://www.ris.bka.gv.at/jus. ecolex 2006, 564 = Zeitschrift für Ehe- und Familienrecht (EF-Z) 2006, 53 with cmt. by Bernat = Interdisziplinäre Zeitschrift für Familienrecht (FamZ) 2006, 63 with cmt. by M. Neumayr = Recht der Medizin (RdM) 2006, 90 = Juristische Ausbildung und Praxisvorbereitung (JAP) 2006/2007, 115 with cmt. by F. Parapatits = Zivilrecht aktuell (Zak) 2006, 214 with cmt. by R. Rebhahn. See also G. Wilhelm, ecolex 2006, 625; H.E. Hollaender, RdM 2007, 7; B.C. Steininger, Verpflichtung zu paternalistischer ärztlicher Aufklärung statt eigenverantwortlicher Patientenentscheidungen? Juristische Blätter (JBl) 2007, 198; S. Merckens, Kein Schaden ohne Kind, Österreichisches Anwaltsblatt (AnwBl) 2007, 237. The reason for this being the fact that, as of this time, the child might be viable. From a legal point of view, abortions of severely disabled babies are possible until birth according to § 97 sec. 1, 2 of the Criminal Code (Strafgesetzbuch, StGB).
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whether and if so to what extent there was contributory negligence on the side of the plaintiff. On the question whether maintenance costs are compensable at all in wrongful birth cases, the OGH limits itself to referring to the leading case 1 Ob 91/99k, in which such compensation had been awarded for the first time. However, while in this leading case only the additional costs caused by the child’s disability had been claimed and therefore awarded, the OGH in the present case awards the plaintiff compensation for the child’s entire maintenance costs arguing that, according to the plaintiff’s intention protected by her contract with the gynaecologist, she would not have had to pay any maintenance for a disabled child.
8
c) Commentary
This case led to widespread and quite emotional discussions. One reason for this seems to be the combination of two sensitive topics – first the question of the extent of doctors’ duties of disclosure and second the question whether there should be compensation for maintenance costs in wrongful birth cases or not.
9
(i) Duty of Disclosure Concerning the duty of disclosure, the decision is in my view very problematic.15 The OGH applies a rule developed for cases in which diagnosis is already available to a case where such diagnosis is not yet possible. While it is comparatively easy to inform a patient about risks of not performing a certain treatment indicated by the diagnosis, the situation in the present case is completely different: As there were only non-specific indications for irregularities, a disclosure of the risks connected with abstaining from further examinations, as required by the OGH, would in fact require a disclosure of all imaginable – especially negative – diagnoses. However, such a disclosure of all imaginable risks is normally rejected by court practice.16 Moreover, concerning tentative diagnosis, disclosure will usually be restricted to make sure patients are not over-burdened by uncertain or unverified diagnoses.17 In a case such as the present one, where there are only non-specific indications for irregularities which do not even allow a tentative diagnosis, it should in my view suffice if the doctor discloses this situation and refers to the necessity of further tests. This should be sufficient to enable the patient to make an autonomous and selfdetermined decision regarding further examinations.
10
That the OGH demands a disclosure of the risk of a chromosome aberration in the present case can only be explained by the fact that such a chromosome
11
15
16
17
See Steininger, JBl 2007, 198. Cf. also L. Stärker, FamZ 2007, 4 f. and F. Parapatits, JAP 2006/2007, 116. OGH in Österreichische Richterzeitung (RZ) 1973, 170; RdM 2001, 184; RZ 2001, 284; RdM 2002, 23; RdM 2002, 26; cf. also D. Engljähringer, Ärztliche Aufklärungspflicht vor medizinischen Eingriffen (1996) 187 f; R. Reischauer in: P. Rummel, ABGB II2 (1992) § 1299 no. 26. Cf. A. Laufs in: A. Laufs/W. Uhlenbruck (eds.), Handbuch des Arztrechts2 (2002) § 63 no. 15.
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aberration was established ex post. Ex ante such an aberration was not ascertainable as there was a multitude of possible – innocent or grave – reasons for the irregularities. As soon as there is the slightest abnormality in a diagnostic finding, doctors would, according to the present OGH decision, have to disclose all potential diagnoses, especially severe consequences for the unborn child, even though there are no clear indications for such consequences yet. This leads to enormous and regularly unnecessary psychological burdens for the women concerned. This effect is further aggravated by the OGH’s requirement that doctors inform their patients that an abortion might soon no longer be possible. Additionally, this could encourage doctors to assume more severe harm to the child in case of doubt in order to avoid liability.
12
Although the present decision deals with the limited field of prenatal diagnosis, the OGH’s reasoning could easily be applied to other fields of medical advice. Finally, the decision shows a clear disequilibrium in standards demanded from the defendant and the plaintiff. While the defendant has to meet extremely high standards, the opposite is the case for the plaintiff – the OGH even argues that further fact finding is necessary to assess whether the fact that the plaintiff did not go to the specialist clinic can be considered as contributory negligence at all. It seems that although one of the OGH’s main arguments refers to patients’ autonomy, the patients’ individual responsibility is ultimately disregarded by the decision. (ii) Wrongful Birth
13
On the question of compensability of maintenance costs, the OGH’s decision is very brief. The OGH mainly refers to the leading case 1 Ob 91/99k. In that case the OGH had expressed its objections to considering the birth of a healthy but unwanted child as a reason for a compensable pecuniary loss. However, it had also argued that the situation was different as the severe bodily disability of the child led to a very heavy burden being placed on the parents. Although this wording leaves many questions open, it seems that the 1st panel of the OGH in its leading decision followed an intermediary view held in Austrian doctrine.18 According to this intermediary view, maintenance costs can normally not be compensated as the tortfeasor’s conduct does not merely cause maintenance costs but leads to a comprehensive family relationship including different pecuniary and non-pecuniary aspects, which will in total usually not be considered as pecuniary loss. However, according to this intermediary view, such a relationship of family law can be considered as being detrimental if it causes an extraordinary burden to parents. According to this view, compensation presupposes a financial emergency that might have been caused by the heightened needs of a disabled child but also by the limited financial means of the parents. The OGH, however, does not mention this alternative and only refers to an extraordinary burden due to the child’s severe disability. 18
H. Koziol, Österreichisches Haftpflichtrecht I (3rd ed. 1997) no. 2/22 ff., 2/30 ff.; Ch. Hirsch, Arzthaftung bei fehlgeschlagener Familienplanung (2002); F. Bydlinski, Das Kind als Schadensursache im Österreichischen Recht, in: U. Magnus/J. Spier, Liber Amicorum for Helmut Koziol (2000) 29.
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While in this leading case only the additional costs caused by the child’s disability had been claimed and therefore awarded, the present decision awards compensation for the entire maintenance costs without referring to the financial means of the parents. This leads to a discrepancy of the present case with the leading decision.19 If one assumes that maintenance costs can only be compensated in case of an extraordinary burden, it is not evident why basic maintenance costs should always be an extraordinary burden to parents. The OGH’s court practice is therefore not consistent on this topic. Moreover, only a few months later a different panel of the OGH issued another decision related to this question which again casts a different light on the OGH’s court practice.20
14
2. OGH 16 March 2006, 2 Ob 303/04d21: Compensation in Case of Salary Continuation a) Brief Summary of the Facts
An employee of the plaintiff had been seriously injured in a traffic accident in 1999 for which the defendants are liable. In March 2000 the employee resumed work for the plaintiff as an advantaged disabled employee in the sense of the Behinderteneinstellungsgesetz (BEinstG, Act on Employment of Disabled Persons). His disability caused by the accident at that time amounted to 60%. Due to long term effects of the accident, the employee’s performance deteriorated considerably after re-employment. In 2002 the degree of his disability amounted to 70%. § 7 BEinstG prohibits a reduction of salary of advantaged disabled employees because of their disability. Therefore, the employee received at least € 21,000 in excess of what would have corresponded to his factual performance. The plaintiff claimed compensation for the salary and the employer’s contributions to social security paid in excess of the employee’s factual performance.
15
b) Judgment of the Court
The OGH refers to its judicature according to which employers who have a duty to the continuation of a salary22 are subrogated to the employee’s compensation claims against the tortfeasor as the damage is in such cases shifted from the employee to the employer.23 The OGH then outlines that, according to § 7 BEinstG, the salary of advantaged disabled employees in the sense of this Act may not be reduced on the basis of the disability. This also applies if the health condition of this employee deteriorates during the employment. The OGH therefore rules that § 7 BEinstG has a purpose similar to § 8 AngG. 19 20 21
22
23
B.C. Steininger, Haftung und Versicherung (HAVE) 2006, 383 f. OGH 14.9.06, 6 Ob 101/06f. See below case 3, no. 18 ff. ecolex 2006, 750 with cmt. by A. Baumgartner; JBl 2006, 590; Österreichisches Recht der Wirtschaft (RdW) 2006, 321; Zak 2006, 198; ZVR 2006/156 with cmt. by Ch. Huber and by G. Kathrein. Like e.g. on the basis of § 8 Angestelltengesetz, Employee’s Act (AngG), foreseeing salary continuation for a certain period of time in case of illness or injury of the employee. This shift works as follows: Without rules on salary continuation the employee would suffer loss of income. Due to the rules on salary continuation this loss is shifted to the employer as the latter has to pay although he does not receive the employee’s corresponding performance.
16
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The Court holds that, as the employee can perform less due to the accident, he would earn less without § 7 BEinstG. Therefore, according to the OGH, § 7 BEinstG merely shifts this damage to the employer and, consequently, the OGH grants the plaintiff’s claim.24 c) Commentary
17
The present decision is a consistent further development of the OGH’s judicature on compensation in case of salary continuation. While damage to third persons will normally not be covered with reference to the floodgates argument, this argument is not valid in cases like the present one as the damage which would normally fall on the direct victim is merely shifted to someone else by the rules on salary continuation; these rules do, however, not have the purpose of relieving the tortfeasor.25 Therefore, the subrogation by operation of law developed by court practice for these cases has to be agreed with. 3. OGH 14 September 2006, 6 Ob 101/06f26: Wrongful Conception a) Brief Summary of the Facts
18
After the birth of their third child the plaintiffs decided to have no further children. Therefore, the first plaintiff had a vasectomy performed by the defendant. Despite this sterilisation, the first plaintiff’s wife – the second plaintiff – became pregnant and gave birth to a healthy child. The plaintiffs claimed that the defendant had not informed them about the possibility of a spontaneous reconnection of the spermatic duct. They argued that – had they been adequately informed – they would have used additional means of contraception until verification of the vasectomy’s success. They claimed compensation for the maintenance costs of their child and € 5,000 compensation for the pain suffered by the second plaintiff when giving birth to the child. b) Judgment of the Court
19
This is the first decision of the OGH on compensation for maintenance costs for a healthy child born after an unsuccessful sterilisation. The 6th panel of the OGH denies the claim after an extensive examination of previous court practice and doctrine as well as some comparative references. It argues that the birth of a healthy though unwanted child cannot be considered as damage. The 24
25
26
The fact that employers are, under certain conditions, obliged to employ advantaged disabled persons in the sense of the BEinstG was not problematic in the present case, as the plaintiff more than fulfilled this obligation. E. Karner in: H. Koziol/P. Bydlinski/R. Bollenberger (eds.), Kurzkommentar zum ABGB (2nd ed. 2007) § 1295 no. 17. Evidenzblatt der Rechtsmittelentscheidungen (EvBl) in Österreichische Juristenzeitung (ÖJZ) 2006/171 with cmt. by B.C. Steininger = EF-Z 2006, 131 with cmt. by M. Leitner = FamZ 2006, 198 with cmt. by M. Neumayr = ecolex 2006, 900 with cmt. by G. Wilhelm = Zak 2006, 358 with cmt. by A. Kletečka = JBl 2007, 171; RdM 2007, 20 with cmt. by Ch. Huber. Cf. also G. Wilhelm, Just Birth – Wrongful Decision, ecolex 2006, 793; B.C. Steininger, BGE 132 III 359 aus österreichischer Sicht, HAVE 2006, 382; J. Cornides, Zur Haftung des Arztes bei fehlerhafter pränataler Diagnose, JBl 2007, 137; D. Hinghofer-Szalkay/C. Hirsch, Wrongful Conception die Zweite – (k)ein Ende in Sicht, EF-Z 2007, 89.
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OGH stresses that this decision does not lead to a discrimination of disabled persons. The exceptional award of compensation is, according to the OGH, not the consequence of a negative evaluation of a disabled child but merely an attempt of a pecuniary compensation of a special maintenance need. Extremely limited financial means of the parents would, in the view of the OGH, be a reason of similar weight for awarding compensation – even to parents of a healthy child. The OGH refers to an extraordinary, virtually existential aggravation because of insufficiently available means for maintenance – be it absolutely, be it because of the particularly high needs of the child. In such situations, it can, according to the OGH, not be argued that parents shift their normal maintenance obligation to a third person. For lack of a financial emergency, the OGH denies the plaintiffs’ claim for compensation of maintenance costs in the present case. The OGH also denies the second plaintiff’s claim for compensation of her nonpecuniary loss related to the pain suffered during birth. It argues that this pain is intrinsically linked to the existence of the child and the parent-child relationship. Particular complications which might exceptionally justify a different decision were, according to the OGH, not present in the case at hand.
20
c) Commentary
As outlined already in the commentary to case 1 above, the OGH’s practice on compensation for maintenance costs related to the birth of a child is still not consistent. The present case is quite in line with the leading case on wrongful birth,27 but the OGH now clarifies that in order to assume an “extraordinary burden”, the existence of a financial emergency and not the child’s disability is decisive. The OGH is anxious to avoid unequal treatment of disabled children. However, this would in my view presuppose that, even if the child is disabled, compensation is only awarded insofar as a financial emergency does indeed exist.28 In the previous decisions awarding compensation to the parents of a disabled child the financial situation of parents was, however, not taken into account. The present decision leaves scope for interpretation in this respect, but it can in my view be interpreted in the sense that even in case of a disability of the child the existence of a financial emergency situation will be decisive.
21
The present decision – though in line with the leading case – is contradictory to the decision 5 Ob 165/05h29 that awarded compensation for the entire maintenance costs without having regard to the financial situation of the parents. When starting from the idea that maintenance costs will only be compensable exceptionally in case of an “extraordinary burden” to the parents, it is not clear why, in case of a disability of the child, this child’s normal maintenance costs should always qualify as an “extraordinary burden”. If compensation for the entire maintenance costs is awarded to the parents of a disabled child, the maintenance costs for a healthy child would also have to be compensable.
22
27 28 29
Described above in no. 13 f. See Steininger, ÖJZ 2006, 903. Case 1 above. Cf. no. 8 and 13 f. above.
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23
The OGH’s solution that maintenance costs are compensable only in exceptional cases brings about another problem: Should the non-pecuniary advantages related to the birth of a child be taken into account or not? If one answers in the positive, compensation for maintenance costs will normally not be possible. If, however, the question is answered in the negative, compensation for maintenance costs will have to be awarded. Referring to the intermediary view put forward in doctrine, the OGH chooses an overall view of pecuniary and non-pecuniary aspects. It therefore adjusts damages for pecuniary loss due to non-pecuniary benefits, which leads to considerable problems of comparability.
24
The problems concerning the award of compensation for the pain related to giving birth to a child are similar to those concerning maintenance costs: If maintenance costs are qualified as compensable, the same must in principle apply to the pain related to birth. If, however, an overall view of all pecuniary and non-pecuniary advantages and disadvantages is chosen – as by the OGH – compensation will be limited to cases of complications as only then will a special disequilibrium be present.
25
In conclusion one can state that there is still no consistent line of court practice.30 The severe problems related to the question of compensation of maintenance costs are related to the fact that there are hardly any clues in the law as to how this group of cases should be dealt with – especially whether nonpecuniary aspects should be taken into account or not. Therefore a decision by the legislator would be most important. 4. OGH 12 June 2006, 2 Ob 53/05s31: Non-Pecuniary Loss a) Brief Summary of the Facts
26
The plaintiff’s husband was the driver of a bus involved in an accident caused by a truck steered by the first, owned by the second and insured by the third defendant. In the course of this accident eight teenage bus passengers were killed and several others injured. The plaintiff’s husband did not suffer any physical injuries. However, as a consequence of the accident, he developed a post-traumatic stress disorder, which, according to the plaintiff, led to over-protective behaviour of her husband towards herself and their children. She argued that because of her husband’s illness she herself suffered a mental disorder to be qualified as illness and requiring treatment. She claimed compensation for her non-pecuniary loss.
27
According to the fact finding of the court of first instance, the plaintiff indeed suffered from a depressive disorder. The court of first instance did, however, expressly not verify whether this disorder was caused by the accident. 30
31
Although the present decision has in the meantime been confirmed by a second OGH decision: OGH 30.11.2006, 2 Ob 172/06t = ecolex 2007, 169 with cmt. by G. Wilhelm = Zak 2007, 77. See also Hinghofer-Szalkay/Hirsch, EF-Z 2007, 90. ZVR 2006/178 with cmt. by E. Karner.
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b) Judgment of the Court
The OGH first refers to its practice of awarding close relatives of a deceased primary victim compensation if they suffer mental harm to be qualified as “krankheitswertig” i.e. as an injury to health.32 The OGH argues that in doctrine compensation for a mental shock to be qualified as “krankheitswertig” is considered possible in case of most severe injuries of the direct victim.33 In the present case the court of first instance had left it open whether the plaintiff’s mental disorder was caused by the accident. The OGH argues that, even if this were the case, the plaintiff’s claim would have to be denied as even the view put forward in doctrine in favour of compensation in case of an injury of the primary victim requires a most severe injury (amounting to nursing care) of the primary victim. This is not the case concerning the plaintiff’s husband. The post-traumatic stress disorder he suffered cannot be qualified as a most severe injury. Therefore, in the view of the OGH, the prerequisites for awarding the plaintiff compensation are not met.
28
c) Commentary
The OGH’s result denying compensation in the present case can be approved of. Even if there was a causal connection between the accident and the plaintiff’s mental disorder, awarding her compensation for her non-pecuniary loss would stretch the limits of compensation for “shock damage” too far: Decisive for awarding compensation to close relatives of the direct victim for their mental shock is whether the behaviour of the tortfeasor can be considered as highly dangerous in relation to the secondary victim, i.e. whether the behaviour is highly suited to cause a mental shock of the secondary victim.34 This is not the case concerning the plaintiff who could be qualified as a tertiary victim.
29
5. OGH 12 July 2006, 9 ObA 129/05v35: Causation a) Brief Summary of the Facts
The plaintiff in this labour law case had been employed as “first shop assistant” in one of the defendant’s stores. As of autumn 2003 the cashing up regularly showed considerable deficits, i.e. the amount of money in the till was considerably lower than it should have been according to the till records. The plaintiff was aware of this problem but could offer no explanation for these deficits. Ultimately the defendant had a video surveillance of the store performed by a detective agency without informing the store’s staff.
30
The videos showed that a trainee employed in the store had taken money out of the till. However, the videos also showed how the plaintiff wrongfully ap-
31
32
33
34 35
For a brief overview of the OGH’s practice on compensation for non-pecuniary loss of close relatives of the direct victim see Steininger (fn. 1) no. 46. See E. Karner/H. Koziol, Der Ersatz ideellen Schadens im österreichischen Recht und seine Reform. 15. Österreichischer Juristentag vol. II/1 (2003) 88 ff. E. Karner, ZVR 1998, 186 ff.; id. in his cmt. on the present case, ZVR 2006, 460. EvBl 2006/167; RdW 2006, 780; Wirtschaftsrechtliche Blätter (wbl) 2007, 137; Zak 2006, 322; Arbeits- und Sozialrechtskartei (AsoK) 2007, 74 with cmt. by E. Marhold-Weinmeier; Das Recht der Arbeit (DRdA) 2007, 61; ecolex 2007, 97 with cmt. by D. Rubin.
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propriated customer discounts: after a customer had left the store, she typed in a key combination indicating that the relevant customer was eligible for a customer discount of 3% and took the respective amount from the till. During the surveillance period (about two weeks), the plaintiff thereby acquired a total amount of € 1. However, as such customer allowances appear in the till records, the plaintiff’s misconduct did not lead to the deficits in the balance of the till which had led to the video surveillance. Moreover, the plaintiff had never raised a concrete suspicion of having taken money out of the till. When the defendant obtained the surveillance videos, the plaintiff was confronted with the results and admitted her misconduct immediately and on the same day the employment relationship was terminated with immediate effect.
32
The defendant had to pay € 4,805 for the video surveillance, 50% of which was compensated by the trainee. To be able to present the video to the court in a shortened form, the defendant had the videos cut which caused costs of another € 429.
33
In the present proceeding the plaintiff claimed € 2,700 of outstanding salary. The defendant however, maintained a counter claim consisting of surveillance and cutting costs to the amount of the plaintiff’s claim. b) Judgment of the Court
34
The Supreme Court first refers to its practice according to which employers are entitled to compensation for adequately caused investigation costs if the employee has given indications for conduct in breach of the employment contract and contrary to the employer’s interests, which caused the employer to initiate inquiries to gain clarity. It then stresses that there was no such conduct of the plaintiff. Her minor misconduct was not the cause of the video surveillance organised by the defendant, as the surveillance had been organised because of deficits in the balance of the till. These deficits had been caused by the trainee who took money from the till, while the plaintiff’s misconduct did not lead to such deficits. According to the OGH, the facts of the case, moreover, clearly do not show any violation of control duties of the plaintiff in relation to the trainee on which a causal relationship could be founded.
35
The OGH then refers to literature according to which surveillance costs which were not caused by the relevant act cannot be compensated. It arrives at the conclusion that the defendant, therefore, does not have a claim for compensation.
36
The OGH then stresses that the situation might be different in relation to the cutting costs. These are so-called follow-up costs which could be adequately caused. However, in the present case the facts show that the cutting costs were not necessary to convict the plaintiff of her deeds, as she had confessed immediately. The OGH consequently holds that, even if one assumed a causal link between the plaintiff’s conduct and the cutting costs, compensation would not be possible.
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Therefore the OGH rules that the defendant’s counter claim is unfounded and it awards the plaintiff her outstanding salary without having to deal with the question whether the video surveillance was justified in the present case.
37
c) Commentary
The OGH’s decision merits approval and is based on unequivocal opinions in doctrine: The person caught will only have to compensate surveillance costs if this person has indeed caused the expenditure in question.36 For lack of causation, the defendant’s counter claim was therefore not justified.
38
6. OGH 26 July 2006, 3 Ob 106/06v37: Medical Liability a) Brief Summary of the Facts
The plaintiff suffered from visual defects and therefore had laser operations performed on both of her eyes by the defendant. Already at that time, she also suffered from a beginning cataract, which, however, constituted no contraindication for the laser operations. The operations were performed lege artis and first led to an improved vision. Consequently, however, the plaintiff’s vision deteriorated and she suffered from diplopic images and glare. It is unclear whether the plaintiff’s disorders are due to healing problems after the operations or the plaintiff’s progressively developing cataract. This could only be ascertained by cataract surgery which the plaintiff refuses.
39
As the laser operations were performed lege artis, only a liability of the defendant based on the violation of a disclosure duty could be considered. Both, the court of first instance and the Court of Appeal, denied the plaintiff’s claim. The Court of Appeal argued that a violation of a disclosure duty can only lead to liability if a typical risk which would have had to be disclosed occurs, whereby the burden of proof for causation lies with the plaintiff. Although plaintiffs will usually benefit from prima facie evidence (“Anscheinsbeweis”), such evidence is, according to the Court of Appeal, not admissible if counter evidence is not possible for the defendant due to circumstances in the plaintiff’s sphere. In the view of the Court of Appeal, the plaintiff – though not obliged to undergo cataract surgery – will have to bear the consequences of the uncertainty. Dividing the loss between plaintiff and defendant, which would be possible in cases of alternative causation, is, in the view of the Court of Appeal, not admissible in the present case, as final evidence is lacking.
40
b) Judgment of the Court
In its decision, the OGH had to deal with three different questions, namely proof of causation, alternative causation and, finally, the extent of medical disclosure duties.
36
37
See Koziol (fn. 18) no. 3/19; R. Welser in: H. Koziol/R. Welser, Bürgerliches Recht II13 (2007) 310; R. Welser, ÖJZ 1977, 645; C. Thiele, RdW 1999, 769 f. Unpublished. Available at http://www.ris.bka.gv.at/jus.
41
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(i) Proof of Causation
42
The OGH first refers to its practice according to which claimants in medical malpractice cases can benefit from prima facie evidence concerning causation. It also stresses that such prima facie evidence is rebutted if a different course of action is shown to be “seriously” possible. The OGH for the present case argues that prima facie evidence was not successfully brought as there were two potential reasons for the plaintiff’s disorders.
43
In a next step the OGH considers the Court of Appeal’s argument that prima facie evidence is not admissible at all in the present case and that the uncertainties have to be borne by the plaintiff. The OGH argues that a situation in which providing evidence is unacceptable for the plaintiff has to be treated in the same way as a situation in which strict proof is impossible. In the view of the OGH, litigants have a duty to make acceptable inquiries to present their position in trial. If the plaintiff prevents the tendering of evidence (i.e. refuses the cataract surgery) without justifying reasons, she violates this duty and her claim will therefore have to be denied. If on the other hand, the surgery is not acceptable to the plaintiff, which means that refusing it is justified, only alternative causation is proven and the damage will then have to be divided between plaintiff and defendant in the view of the OGH. (ii) Alternative Causation
44
The OGH first refers to the theory of Franz Bydlinski. On the basis of his generally accepted theory of joint and several liability in case of alternative causation of two faulty acts,38 Bydlinski argues that if a faulty behaviour as a first potential cause concurs with a risk in the sphere of the plaintiff as a second potential cause, damage should be divided between plaintiff and defendant in the light of the Austrian Civil Code’s provision on partial compensation in case of contributory negligence (§ 1304 Allgemeines Bürgerliches Gesetzbuch, ABGB).39
45
After some hesitation, the OGH has already followed this theory repeatedly, especially in medical malpractice cases where the treatment error was one potential cause while the other potential cause lay in the victim’s sphere.40 In the present decision, the OGH requires a grave treatment error for dividing the 38
39
40
F. Bydlinski, JBl 1959, 8 ff.; Koziol (fn. 18) no. 3/29 ff. For an overview in English see H. Koziol, Problems of alternative causation in Tort Law, in: H. Hausmaninger et al. (eds.), Developments in Austrian and Israeli Private Law (1999) 178 ff.; B.A. Koch, Austria, in: B.Winiger/H. Koziol/B.A. Koch/R. Zimmermann, Digests of European Tort Law I (2007) 6a/3, no. 6–8. F. Bydlinski, Probleme der Schadensverursachung nach deutschem und österreichischem Recht (1964) 86 ff.; id., Aktuelle Streitfragen um die alternative Kausalität, in: Festschrift Beitzke (1979) 30 ff.; id., Haftungsgrund und Zufall als alternativ mögliche Schadensursachen, in: Festschrift Frotz (1993) 3. See also Koziol (fn. 18) no. 3/36 ff. For an overview in English see Koziol (fn. 38) 180 ff; Koch (fn. 38) 6b/3, no. 6–9. OGH in EvBl 1994/13; SZ 68/207 = JBl 1996, 181 = RdM 1996, 54; 15.3.2001, 6 Ob 36/01i. In contrast, an all-or-nothing approach was chosen in the following decisions JBl 1992, 522 = EvBl 1993/32; 8.7.1993, 2 Ob 590/92 = JBl 1994, 540 with cmt. by R. Bollenberger.
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damage between patient and doctor. However, in the present case the potential cause outside the patient’s sphere was not a treatment error but a violation of disclosure duties. In a next step, the OGH holds that a violation of a disclosure duty equals a grave treatment error, as the surgery and therefore the damage would not have occurred had the patient been adequately informed. In the view of the OGH, it only has to be clear that the patient would not have consented to the surgery had she been adequately informed. On the basis of the solutions reached by the OGH on the above-mentioned questions, partial liability of the defendant for his potentially causal acts will be possible if the surgery was indeed unacceptable for the plaintiff. The OGH considers the fact finding of the lower courts as insufficient to decide this latter question and it remits the case to the court of first instance.
46
(iii) Duty of Disclosure A further condition for the defendant’s liability would be that he did indeed violate a duty of disclosure. According to the OGH, the defendant would have had to inform the plaintiff of the experimental character of the laser surgery if the laser operations were not yet clearly accepted as state of the art at the time of their performance. However, for lack of fact finding on the question of what surgery techniques were state of the art at that time, the question cannot be decided. In a next step the OGH also stresses that the mere fact that the risk of diplopic images and glare was not expressly disclosed does in itself not qualify as a violation of disclosure duties because the plaintiff had been informed of possible most severe complications.
47
c) Commentary
(i) Proof of Causation The OGH’s decision on the topic of proof of causation is convincing. If the surgery was unacceptable for the plaintiff, she did not violate her procedural duties by refusing the surgery. Therefore, burdening her with uncertainties beyond the general rules cannot be justified. As, according to the general rules, a plaintiff may claim the defendant’s partial liability based on the concept of alternative causation, this must also be possible for the plaintiff if the surgery was unacceptable.
48
(ii) Alternative Causation The issue of alternative causation is more complicated. The present case seems to be the first to apply Bydlinski’s concept of partial liability in case of a potential cause in the tortfeasor’s and another one in the victim’s sphere to a case of a violation of disclosure duties. This solution can be approved of as it generally allows an avoidance of the inequitable results of an all-or-nothing approach.41 It might, however, surprise some that the OGH first establishes a grave treat41
This is also stressed by the OGH in its decision.
49
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ment error as prerequisite for this solution42 and then in a next step qualifies a violation of disclosure duties as being equal to a grave treatment error. Limiting the application of this concept of partial liability in case of potential causes in both, the tortfeasor’s and the victim’s sphere, in such a way is not convincing. In this respect, the decisive factor is in my view the question whether the defendant’s behaviour was concretely dangerous, i.e. highly adequate for the occurrence of the damage.43 This will regularly be applicable in case of a grave treatment error. However, in my view, both, normal treatment errors and violations of disclosure duties, might also qualify as concretely dangerous for the occurrence of the damage. (iii) Duty of Disclosure
50
Finally, the OGH’s comment on the extent of disclosure duties in my eyes merits approval: the OGH’s assertion that not expressly mentioning the possible complications of diplopic images and glare does in itself not qualify as a violation of disclosure duties sets sensible limits to disclosure duties, which is of special importance in the light of the extreme extent of disclosure duties assumed by another 2006 OGH decision.44 7. OGH 26 July 2006, 3 Ob 116/05p45: Non-Pecuniary Loss a) Brief Summary of the Facts
51
The plaintiff suffers from paraplegia. She attended a trade fair for disabled persons as she was interested in a wheelchair which would allow her to climb stairs. An employee of the defendant persuaded the plaintiff to test such a wheelchair with an appropriate mechanism. He fixed the position of the plaintiff’s legs but omitted to also fix the upper part of her body. Consequently the plaintiff tipped over as soon as she activated the mechanism. Although the plaintiff’s husband and another employee of the defendant managed to catch her just before she hit the floor, the plaintiff was injured. Due to the paraplegia she did not suffer pain neither when the accident occurred nor during her continued presence at the trade fair. However, in the evening she suffered from ague and had to vomit during the night. When the plaintiff finally went to a hospital it was diagnosed that both of her knee-joints were broken. She had to stay in hospital for several weeks and during the first three months after the accident she needed additional care of about one hour a day. The fractures healed in a defective position which means that further complications are to be expected. However, because of the paraplegia the plaintiff did not suffer pain in her legs.
42 43 44 45
The OGH thereby refers to T. Juen, Arzthaftungsrecht (2nd ed. 2005) 40. Koziol (fn. 18) no. 3/38. OGH 7.3.2006, 5 Ob 165/05h. See above case 1. ZVR 2006/202 with cmt. by E. Karner = Zak 2006, 376 = ecolex 2007, 27 with cmt. by G. Wilhelm. See also D. Hinghofer-Szalkay/M. Prisching, Schmerzengeld ohne Schmerzen – Neue Entwicklungen? ZVR 2007, 116; D. Hinghofer-Szalkay/M. Prisching, Schmerzunempfindlichkeit bereits vor Schadenszufügung durch den Schädiger: pro und contra Schmerzengeld ohne Schmerzen, Zak 2007, 143.
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The plaintiff claimed compensation for the pecuniary and non-pecuniary loss suffered as a consequence of the accident amounting to € 18,000. The major part thereof (€ 17,500) was claimed to compensate the plaintiff for her pain and suffering (the so-called Schmerzengeld). Both, the court of first instance and the Court of Appeal, awarded the plaintiff Schmerzengeld amounting to € 9,000.
52
b) Judgment of the Court
The question to be decided by the OGH was whether a person, who in parts of her body cannot feel pain, is entitled to receive compensation for pain and suffering at all and if so to which extent.
53
The OGH had already awarded Schmerzengeld to persons who had lost their ability to feel pain due to the acts of the tortfeasor arguing that someone who loses his ability to feel pain suffers harm that is at least as significant as the harm suffered through pain.46 However, the present case is different insofar as the plaintiff’s limited ability to experience pain was not caused by the tortfeasor but existed before the damaging event in question.
54
The OGH refers to the argument put forward by Karner47 that non-pecuniary loss can be calculated in an objective-abstract way, which means that the person injured can claim a minimum compensation for the violation of her personality. Therefore, according to Karner, someone whose bodily integrity is violated has a claim for compensation even if he does not have the ability to feel pain. On the basis of this argument, the OGH concludes that the plaintiff is entitled to a basic amount of compensation for the violation of her personality irrespective of her inability to feel pain in her legs. The OGH argues that the plaintiff suffered from the accident (as she had to stay in hospital, undergo surgery, etc.) notwithstanding the fact that she did not feel pain in her legs. Her inability to feel pain will, however, lead to a reduction of the plaintiff’s claim in comparison to the claim of a person who does feel pain. On the other hand, the OGH argues that the mental distress of a paraplegic person suffering an additional injury is more intense than that of a healthy person, which increases the plaintiff’s claim. In the view of the OGH, an assessment of the non-pecuniary loss suffered by the plaintiff due to the violation of her bodily integrity requires an overall evaluation of all the disadvantages involved. All physical and mental pain suffered will, in the view of the OGH, have to be taken into account in this evaluation. As the OGH considered the fact finding insufficient especially concerning the plaintiff’s mental suffering, it annulled the decisions of the lower courts and remitted the case to the court of first instance.
55
46 47
See OGH in EFSlg 69.111; ZVR 1993/150; RdM 1995, 116 and ZVR 2000/54. E. Karner, Der Ersatz ideeller Schäden bei Körperverletzung (1999) 137.
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c) Commentary
56
The present decision of the OGH can be agreed with and it has already been met with approval by commentators.48 Starting from its practice on claims of persons who lost their ability to feel pain due to the act of the tortfeasor (where compensation will be awarded), the OGH elaborates a consistent solution for this new group of cases. It is convincing that the OGH does not limit compensation for pain and suffering to physical pain but also takes mental suffering into account. Due to the general difficulties in assessing non-pecuniary loss, the OGH’s practice stresses that the objectively verifiable circumstances of the individual case will be decisive.49 Both, the plaintiff’s inability to feel pain in her legs as well as the increased mental distress caused to an already disabled person by additional injuries are factors which can be assessed in an objective way. Therefore, both factors should be taken into account when assessing nonpecuniary loss. In all, the OGH reaches a well-balanced solution. 8. OGH 12 October 2006, 6 Ob 321/04f 50: Defamation a) Brief Summary of the Facts
57
The defendant, a German association, brought a travelling exhibition entitled “The Holocaust on your Plate” to Vienna. On several, square metre high advertising boards the exhibition showed photos from concentration camps directly next to photos from factory farming and animal slaughtering. The boards were accompanied by texts such as “when it comes to animals, everyone becomes a Nazi” or “Between 1938 and 1945, 12 million persons died in the Holocaust. Just as many animals are killed in Europe for human consumption every hour.”
58
The plaintiffs argued that, being Jewish Holocaust survivors who had spent several years in concentration camps where they had lost most of their family, they are affected by the defendant’s statements which violate their personality rights. According to the claimants, the defendant’s animal protection campaign ridicules and decries Jewish victims of National Socialism. The claimants held that the comparison of productive livestock and human beings is inhumane and that the assertion that the Holocaust was not worse than the common death of animals in slaughter houses constitutes an irreverence of Jewish victims of the Third Reich. Moreover, the claimants alleged that the campaign violates criminal law. The claimants filed for injunctive relief in combination with a preliminary injunction according to § 1330 (which protects the right to honour) together with § 16 ABGB.
59
Both the court of first instance and the court of appeal granted the preliminary injunction but the OGH overruled these decisions. 48
49 50
Karner, ZVR 2006, 501; Hinghofer-Szalkay/Prisching, ZVR 2007, 119 f.; Hinghofer-Szalkay/ Prisching, Zak 2007, 143. Cf. Karner, ZVR 2006, 501 with further references. Medien und Recht (MR) 2006, 366; See also C. Thiele, Der Holocaust auf Ihrem Teller – Wanderausstellung macht Station beim österreichischen Höchstgericht, wbl 2007, 263.
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b) Judgment of the Court
The OGH identifies two main legal questions in this case; first whether the claimants as members of a community are individually concerned by the statements (the OGH refers to a so-called Kollektivbeleidigung, i.e. collective defamation), and second, which content the defendant’s statements have. At the same time, the OGH stresses that the first question will be of no importance for the case in question if the statements are justified by the freedom of opinion (Art. 10 ECHR).
60
The OGH first refers to its judicature on § 1330 ABGB which acknowledges a claim for injunctive relief irrespective of the actor’s fault. It stresses that the right to honour is an absolutely protected right, a violation of which might, however, be justified by freedom of opinion. The Court stresses that even extreme statements have to be accepted unless they are to be qualified as excessive and holds that abusive statements will at any rate have to be qualified as excessive. The Court then stresses the need of a weighing of interests and argues that the impression of an average viewer will be decisive.
61
The OGH then comes to the question of the plaintiffs’ standing to sue, which requires that they are individually affected by the statements and stresses that, for members of a community, this depends on the question whether the individual persons are identifiable. In the present case, the OGH assigns Jewish survivors of concentration camps as the relevant community but decides that the question whether individuals of this community are identifiable is not decisive because the defendant’s statement is justified by the freedom of opinion.
62
In the view of the OGH, the defendant’s exhibition does not decry a race or people. According to the Court, the pictures merely convey the impression that Jewish people were treated like animals. Exploiting the Holocaust for animal protection is, according to the OGH, not wrongful and a reference to the Holocaust must be admissible in principle according to the OGH’s view. The OGH then argues that the plaintiffs are only to a limited extent individually affected as the defamation is directed against a community and argues that the defendant, on the other hand, pursued the legitimate interest of animal protection. Therefore, the OGH comes to the conclusion that the defendant’s interests prevail. It further decides that though the defendant’s statements are impious, crude, exaggerated and even immoral, these statements are not excessive, as the defendants followed the legitimate purpose of gaining attention for animal protection in an overstimulated society.
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c) Commentary
The present decision is in my view very problematic. Although freedom of opinion is an extremely important constitutionally guaranteed right, it will not automatically prevail in relation to another person’s honour. Rather, a weighing of interests is required. In the view of the OGH, the exhibition conveys the impression that concentration camp prisoners were treated like animals. From my point of view, the central statement is, however, that what happens to animals in factory farming and slaughter houses is on the same level as the
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Holocaust, which in my opinion leads to a clear belittlement of National Socialist crimes against humanity. In Austria, gross belittlement of these crimes is sanctioned by criminal law.51 This legitimate decision of the Austrian legal order to limit freedom of opinion in relation to National Socialism52 should, in my view, also have been taken into account in the weighing of interests in the present case: Even if such belittlement cannot be qualified as a criminal act, it remains hard to justify. As the OGH itself stresses, the defendant could have reached a significant impact for animal protection even by showing only the photos of the animals. Therefore, the weighing of interests in my view leads to the result that the claimants’ and not the defendant’s interests prevail. 9. OGH 30 November 2006, 2 Ob 99/06g53: Loss of Maintenance a) Brief Summary of the Facts
65
The plaintiff’s husband had been killed in a car accident negligently caused by the defendant. The plaintiff argued that her husband would have retired about half a year later and that it had been agreed between the partners that her husband would then take care of the household and the two minor children alone, while the plaintiff, who at the time of the accident had a part-time job, would have started to work full-time again. However, after the accident, the plaintiff gave up her job to take care of the children and the household. Amongst others, she claimed compensation for loss of maintenance, including a claim for compensation for the lost (increased) support in housekeeping for the time after her husband’s projected retirement. b) Judgment of the Court
66
The OGH first states that, according to § 1327 ABGB, persons legally entitled to maintenance have a claim for compensation of factually lost maintenance. According to the OGH, § 1327 ABGB provides a rule for compensation of indirect loss, which is, however, limited to compensation for loss of maintenance. The OGH further stresses that a claim for support in housekeeping has to be put on a par with the claim for lost maintenance.
67
In the view of the OGH, future developments have to be considered when assessing the claim according to § 1327 ABGB, which means that the concrete and earnest intention of marital partners to shift the housekeeping to one of them has to be taken into account. However, the OGH also holds that the income of the surviving spouse has to be taken into consideration (i.e. to be deduced from the maintenance claim) if he or she had already partly or fully used this income for his or her own subsistence while the deceased spouse was still alive.
68
In the present case, the amount of lost maintenance will, in the view of the OGH, have to be calculated on the basis of the projected hypothetical course 51 52
53
See § 3 h VerbotsG (Verbotsgesetz, Prohibition Act). See on this question F. Müller, Das Verbotsgesetz im Spannungsverhältnis zur Meinungsfreiheit: eine verfassungsrechtliche Untersuchung (2005) 179 ff., 181. RZ 2007, 117.
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of events: This means that the agreement between the plaintiff and her husband on shifting the housekeeping to him while she would start to work full-time again instead of part-time has to be taken into account: Therefore the OGH rules that the plaintiff is, on the one hand, entitled to compensation for the lost increased support in housekeeping by her husband (which the Court adds to the plaintiff’s maintenance claim) but that, on the other hand, her hypothetical full-time income also has to be taken into account (the Court therefore deduces this hypothetical income from the plaintiff’s maintenance claim). In the view of the OGH, it would be inappropriate to compensate the plaintiff for the lost increased support while ignoring the fact that, according to the spouses’ agreement, she would only have received this support in case of her own full-time employment. The OGH stresses that the surviving spouse should neither be placed in a worse nor in a better situation than without her husband’s death and argues that disregarding the plaintiff’s hypothetical full-time income would lead to compensation of loss of income which is an indirect damage not covered by § 1327 ABGB and is therefore not compensable. c) Commentary
The OGH’s arguments are convincing: If the spouse claims extra compensation for loss of support on the basis of her agreement with her husband, the other part of the agreement, namely that she starts to work full-time and will therefore receive a higher income, will also have to be considered when assessing the amount of damages.
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C. LITERATURE Contributions on Austrian Tort Law Reform: 1. M. Schmidt-Kessel/S.B. Müller, Reform des Schadenersatzrechts I. Europäische Vorgaben und Vorbilder (Manz, Vienna 2006) This book is the first of three volumes54 dealing critically with Austrian tort law reform. The presentation of the draft for a new Austrian tort law in 2005 led to an intense debate of the draft which has partly been met with quite fierce criticism.55 Some of the critics have decided to set up a working team to elaborate a second draft. It is in close co-operation with this working team that the three volumes are edited. Two of these volumes were already published in 2006 and the third volume presenting this working team’s draft has been announced for 2007.
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The present first volume examines tort law reform from a European perspective and aims at providing insight into requirements and examples on a European level. The authors start with some general remarks, especially an examination of basic decisions required in a tort law system and the technique of regulation. In a second step, the authors present the acquis communautaire concerning tort
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54 55
Two of which have already been published. Cf. Steininger (fn. 1) no. 24 ff.
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law and try to detect basic lines within these acquis rules. In a third part, the authors first present both the European Group on Tort Law’s Principles of European Tort Law as well as the Principles of European Law on Non-Contractual Liability Arising out of Damage Caused to Another drafted by the Study Group on a European Civil Code. These two sets of Principles are then compared in detail. In their preface the authors advise that they are members of the Study Group on a European Civil Code and argue that this will not impede an equally critical analysis of both texts. Moreover, the authors stress that it is not their aim to qualify one of the reports as the better one. Notwithstanding these affirmations the text shows quite clear preferences for the solutions chosen by the Study Group on a European Civil Code. 2. R. Reischauer/K. Spielbüchler/R. Welser, Reform des Schadenersatzrechts II. Zum Entwurf einer Arbeitsgruppe (Manz, Vienna 2006)
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The second of these three volumes on Austrian tort law reform56 deals with the draft of a new Austrian tort law presented in 2005. The volume includes several contributions of the members of the second working team who give a very critical analysis of the tort law draft. Moreover another critical contribution looking at the draft from the viewpoint of the insurance industry is included.57 Many of these contributions have already been published elsewhere, but are now embraced in one volume.
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Some of the contributions focus on special questions of tort law like the liability of entrepreneurs for their auxiliaries,58 the strict liability rules in the draft59 or the question of integration of special liability statutes into the ABGB.60 Most of the reports however, deal with the draft in general and thereby focus on the need for and style of tort law reform61 and the methodological approach of a flexible system62 chosen for the draft.63 The contributions argue that because of the adoption of this method requiring a weighing of interests, the draft is too
56 57
58
59
60
61 62
63
See no. 70. S. Grigg/B. Troiß, Die Reform des Schadenersatzrechts aus Sicht der Versicherungswirtschaft, 185, also published in Versicherungsrundschau (VR) 2006, 196. F. Harrer/M. Neumayr, Die Haftung des Unternehmers für Gehilfen, 133, also published in wbl 2006, 493. C. Fischer-Czermak, Der Entwurf einer allgemeinen Gefährdungshaftung, 151, also published in Österreichische Notariats-Zeitung (NZ) 2006, 1. B. Jud, Integration der Haftpflichtsondergesetze in das österreichische Schadenersatzrecht? 169. R. Welser, Braucht Österreich ein neues Schadenersatzrecht? 1. W. Wilburg, Die Elemente des Schadenersatzrechts (1941); id., Entwicklung eines beweglichen Systems im bürgerlichen Recht (1950). See also F. Bydlinski, Juristische Methodenlehre und Rechtsbegriff (2nd ed. 1991) 529 ff. For an overview of this flexible system approach in English see B.A. Koch, Wilburg’s flexible system in a nutshell, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2001 (2002) 545 ff. The same method was chosen by the European Group on Tort Law for drafting the Principles of European Tort Law. See J. Spier, Drafting European Tort Law, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2002 (2003) 543.
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open, unclear, unforeseeable and would therefore lead to legal uncertainty.64 A further contribution which is not limited to the tort law draft points in a similar direction: On the basis of a 2004 civil law amendment65 and the duty to act in § 1297 of the draft, the author diagnoses a tendency of the legislator to shift decisions on the interests involved to the judiciary and criticises this tendency.66 Against the background of this fierce criticism it would obviously be most interesting to have a close look at the alternative solutions to be elaborated by this team of critics. However, such alternative solutions have not yet been presented.
74
3. K.-H. Danzl, Haftung für Verkehrsmittel. Überlegungen (Erläuterungen) zum Entwurf der Schadenersatzreformkommission, ZVR 2006, 40 The author, a member of the working group which elaborated the draft for a new Austrian tort law, presents the rules on traffic liability as foreseen in §§ 1324 to 1328 of this draft. He compares these rules of the draft with the present traffic liability regime and outlines where the draft brings about changes, e.g. by abolishing caps foreseen in the present statute, or by providing for a possibility to exclude or reduce liability in case of force majeure or an unavoidable event. The author also outlines where the old concepts are in principle still valid although the wording might at times differ.
75
4. F. Harrer, Arbeitsunfall und Gehilfenhaftung, Zak 2006, 170 The author, a member of the alternative drafting team, deals with the scope of the employers’ privilege and with liability for auxiliaries. In this context he briefly criticises the draft’s liability for auxiliaries as being too conservative and that the draft did not deal with work injuries.
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5. F. Harrer, Auskunft, Vertrauen und Haftung, Zak 2006, 403 The author examines under which circumstances third persons who relied on information provided within a contractual relationship between other parties can claim compensation for their pure economic loss caused because they relied on that information (such as, for example in the field of liability of auditors towards third persons). After looking at the solutions developed for this problem under present law, the author also analyses how the draft Austrian tort law deals with this question. He comes to the conclusion that the draft allows for compensation in a too wide range of cases.
64
65 66
See especially R. Reischauer, Reform des Schadenersatzrechts? 23, also published in ÖJZ 2006, 391; F. Kerschner, Haftung nach reiner Billigkeit? 107; see also Ch. Huber, Reform des österreichischen Schadenersatzrechts, 83, also published in ZVR 2006, 469, who amongst others analyses the draft with a view on German law. Zivilrechts-Änderungsgesetz 2004, BGBl I 91/2003. K. Spielbüchler, Dankt der Gesetzgeber ab? 56, also published in JBl 2006, 341.
77
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6. R. Haselberger, Grenzprobleme eines neuen Unternehmens-, Deliktsund allgemeinen Schadenersatzrechts, Der Gesellschafter (GesRZ) 2006, 67
78
The author deals with questions on the borderline between business law, tort law and liability law in general. He thereby refers to rules of the new Unternehmensgesetzbuch (Business Law Act, UBG) which replaced the Commercial Code in 2007 and the draft for a new Austrian tort law, especially the enterprise liability foreseen in § 1304 of this draft. He outlines that the draft distinguishes between profit and non-profit enterprises while other rules like the UBG do not make this distinction and comes to the conclusion that the notion of entrepreneur should be the same notwithstanding the different contexts. Furthermore he argues that the flexible system used by the draft might make it easier to consider court practice in other European countries. However, he also points out that this method has important implications in the area of civil procedure, and might in particular make appeals to the Supreme Court more difficult unless procedural law is also changed. 7. H. Koziol, Die außervertragliche Unternehmerhaftung im Diskussionsentwurf eines neuen österreichischen Schadenersatzrechts, JBl 2006, 18
79
The author, a member of the working group which elaborated the draft, examines the draft’s provision on enterprise liability (§ 1304).67 He outlines that the starting point of this provision is a defect in the sphere of the enterprise and stresses that this liability is not strict but rather foresees a reversal of the burden of proof for the required standard of conduct. The author adds, however, that liability is tighter than normal fault liability as liability will only be excluded if the entrepreneur proves that the objectively required care has been complied with whereas subjective reasons for non-compliance with that standard are not sufficient for an exoneration. The author outlines the relation of enterprise liability to other provisions of the draft, gives an overview of tendencies on an international level and finally presents the rationale of the draft’s provision on enterprise liability. 8. H. Koziol, Schaden, Verursachung und Verschulden im Entwurf eines neuen österreichischen Schadenersatzrechts, JBl 2006, 768
80
The present contribution outlines the draft’s rules on damage, causation and fault. Moreover, it deals with the fierce criticism the draft has been met with especially in relation to its methodological approach on the basis of a flexible system. Thereby the author in particular stresses that, in relation to the allegation of the draft’s indetermination, the critics ignore the fact that present tort law is a lot less determined than the draft. Moreover he emphasizes that this criticism is based on the paradoxical assumption that adding additional criteria to the law which bind the courts’ discretion would lead to a higher degree of indetermination, while leaving out the factors relevant for the decision would make the law more determined. 67
For a brief outline of this enterprise liability in English see Steininger (fn. 1) no. 11 f.
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9. H. Koziol, Der österreichische Entwurf eines neuen Schadenersatzrechts, Essays on Tort, Insurance, Law and Society in Honour of Bill W. Dufwa II (Jure Förlag AB, Stockholm 2006) 645 This contribution provides a brief overview of the draft for a new Austrian tort law.
81
10. M. Neumayr, Braucht Österreich ein neues Schadenersatzrecht? Zak 2006, 66 This contribution summarises three lectures held at a conference in Linz.68 The author of the present summary, who is a member of the working team set up for elaborating an alternative draft, comes to the conclusion that a complete reform of Austrian tort law is not required, while changes in particular areas are necessary.
82
Further Selected Literature: ABGB: H. Koziol/R. Welser, Bürgerliches Recht I (Manz, Vienna 13th ed. 2006); H. Koziol/R. Welser, Bürgerliches Recht II (Manz, Vienna 13th ed. 2007); R. Dittrich/H. Tades, ABGB (Manz, Vienna 22nd ed. 2006).
83
Auditors’ Liability: W. Doralt, Die Haftungshöchstgrenze bei der Haftung des Abschlussprüfers gegenüber Dritten, RdW 2006, 687; M. Gruber/F. Harrer (eds.), Aktuelle Probleme der Abschlussprüfung (Manz, Vienna 2006); M. Karollus, Die Haftungshöchstgrenze bei der Dritthaftung des Abschlussprüfers de lege lata und de lege ferenda, RdW 2006, 389.
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Aviation: M. Aufner, Das österreichische Luftfahrt-Haftpflichtrecht auf neuem Kurs, ZVR 2006, 349.
85
Causation: M. Leitner, Kumulative Kausalität mit Zufall – Kritik an 6 Ob 163/05x, ecolex 2006, 278.
86
Consumers: M.M. Karollus, Schadenersatz wegen EG-Kartellverstoßes auch für Verbraucher, ecolex 2006, 797.
87
Contributory Negligence: H. Koziol, Die Mitverantwortung des Geschädigten im Wandel der Zeiten. Gedanken zur Bedeutung der Selbstverantwortung, in: Festschrift Hausmaninger (Manz, Vienna 2006) 139.
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Duty of Supervision: M. Nademleinsky, Aufsichtspflicht und Gehilfenhaftung, EF-Z 2006, 79.
89
Gambling: A. Vonkilch, Rückforderung von Glücksspielverlusten nach dem „Ausspielungsbesteuerungsgesetz“ – Rien ne va plus? ÖJZ 2006, 487.
90
Information Duties: C. Völkl, § 1300 Satz 1 ABGB als Grundlage einer allgemeinen zivilrechtlichen Informationshaftung, ÖJZ 2006, 97.
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68
Those lectures by Welser, Jud and Huber have meanwhile been published in R. Reischauer/K. Spielbüchler/R. Welser, Reform des Schadenersatzrechts II. Zum Entwurf einer Arbeitsgruppe (2006) see no. 72 ff.
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Liability in General: K.-H. Danzl, Bemerkenswerte schadenersatzrechtliche Entscheidungen des OGH aus dem Jahr 2005, ZVR 2006, 175.
93
Non-Pecuniary Loss: K.-H. Danzl, Internationale Länderübersicht zum Schockschaden- und Trauerschmerzengeld, ZVR 2006, 140; P. Griehser/M. Tutsch, Schmerzengeld für psychische Alterationen, ZVR 2006, 260; Ch. Huber, Die Höhe des Schmerzensgeldes – abhängig von der Kaufkraftparität am gewöhnlichen Aufenthaltsort der Verletzten? Essays on Tort, Insurance, Law and Society in Honour of Bill W. Dufwa I (Jure Förlag AB, Stockholm 2006) 581.
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Personal Injury: D. Kocholl, Die Haftungsfreizeichnung bei Personenschäden, ZVR 2006, 512.
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Product Liability: S. Perner, Haften Cargounternehmen als Importeure nach dem PHG? ZVR 2006, 88.
96
Professional Liability: C. Völkl/S. Perner, Die Haftung von Schiedsrichtern und Mediatoren, NZ 2006, 129; E. Völkl/C. Völkl, Die Haftung der rechtsberatenden Berufe im Spiegel der Rechtsprechung 2001–2004, ÖJZ 2006, 261.
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Property Damage: Ch. Huber, Der merkantile Minderwert – das Ausmaß des Ersatzes im österreichischen und deutschen Recht, ZVR 2006, 62.
98
Public Liability: W. Petritz, Die zivilrechtliche Haftung fremder Truppen für Schäden in Österreich, Zak 2006, 363; K. Vrba, Amtshaftung, Staatshaftung (WEKA-Verlag, Vienna 2006).
99
Smoking: S. Kissich, Passivrauchen am Arbeitsplatz – Unterlassung und Schadenersatz, Zak 2006, 46.
100
Sports: M. Hinteregger/G.-P. Reissner (eds.), Sport und Haftung (Verlag Österreich, Vienna 2006); B. Höllwerth, „Hals- und Beinbruch“ beim Sporttraining, JBl 2006, 568.
101
Strict Liability: M. Kisslinger, Gefährdungshaftung im Nachbarrecht (Manz, Vienna 2006).
102
Tort Law and Company Law: M. Gruber, Organaußenhaftung für Kapitalmarktinformationen? wbl 2006, 445; S. Kalss/F. Linder, Ausgewählte Fragen zur Anlegerentschädigung gem §§ 23b ff. WAG, Österreichisches BankArchiv (ÖBA) 2006, 824.
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Traffic Liability: M. Adensamer, Der Verkehrsunfall im Licht der Rom-IIVerordnung, ZVR 2006, 523; V. Hirtler, Kinder als „Täter“ und „Opfer“ im Straßenverkehr, FamZ 2006, 196; A. Wittwer, Direktklage im Inland gegen ausländische Kfz-Haftpflichtversicherung, ZVR 2006, 404.
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Other: F. Bydlinski, Wichtige Grazer Beiträge zum Schadenersatzrecht: Armin Ehrenzweig und Walter Wilburg, Essays on Tort, Insurance, Law and Society in Honour of Bill W. Dufwa I (Jure Förlag AB, Stockholm 2006) 331.
II. Belgium Isabelle C. Durant1
A. LEGISLATION2 1. Loi du 3 juillet 2005 relative aux droits des volontaires telle que modifiée par la loi du 19 juillet 2006/Wet van 3 juli 2005 betreffende de rechten van vrijwilligers zoals gewijzigd door de wet van 19 juli 2006 (Act of 3 July 2005 Relating to the Rights of Volunteers as Amended by the Act of 19 July 2006)3 One will remember that in July 2005, the Belgian legislator adopted an Act introducing a legal framework for voluntary service. Voluntary service is any activity which is exercised without payment or obligation, for the benefit of one or several persons other than the one who exercises the activity of a group of persons or of an organization or of the whole community, and which is organized by an organization outside the domestic or the private sphere.4 An organization is any non-profit making association with or without legal personality. According to art. 3 of the Act,5 an association without legal personality is considered to be any association without legal personality made up of two or more persons who organize by common consent an activity with the aim of carrying out a selfless goal, excluding any share of profits between the members and directors, and who exercise a direct control on the functioning of the association.6 The Act of 3 July 2005 was reported in the previous Yearbook.7
1
As amended for the first time by an Act of 27 December 2005, the Act relating to the rights of volunteers was subject to criticism, in particular art. 5 concern-
2
1 2
3
4 5 6 7
With many thanks to Donna Stockenhuber for her invaluable help. Belgian Acts, published in the Belgian official journal (Moniteur belge/Belgisch Staatsblad), are nowadays only available on the website of the Belgian Ministry of Justice: http://www.ejustice. just.fgov.be/cgi/welcome.pl. Belgian official journal of 11 August 2006 (2nd ed.) 40433 (Moniteur belge/Belgisch Staatsblad). Art. 3, 1° of the Act of 3 July 2005. As completed by art. 2(1) of the Act of 19 July 2006. Art. 3, 3° of the Act of 3 July 2005 as amended by the Act of 19 July 2006. I.C. Durant, Belgium, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2005 (2006) 156 ff.
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ing the liability of the volunteer and of the organization.8 Indeed, the December 2005 version of this provision, that should have entered into force on 1 August 2006, stipulated that any organization (organizing the voluntary service) was liable for the damage caused by a volunteer to the organization or to third parties in the exercise of his/her voluntary function, except in case of fraud, gross negligence or habitual slight negligence of the volunteer. Should the text be strictly applied, the results should probably not have been those wished for by the members of Parliament having suggested the modification of the Act in December 2005. The wish was not to consider the volunteer liable for the damage he caused while exercising his/her function, except in cases of fraud, gross negligence or habitual slight negligence. On the contrary, the legislator intended to keep the exemption of liability of the volunteer in case of slight negligence committed occasionally. Unfortunately, the legal text did not say anything about the exemption of liability from which the volunteer should benefit. Therefore, the volunteer should have been considered as being liable each time he/she was negligent. Besides, the legal text indicated, probably erroneously, that the organization would not be liable in a certain number of cases (i.e. when the volunteer committed a fraud, a grossly negligent act or a slight but customary negligence). It was therefore expected that art. 5 of the Act of 3 July 2005, as amended by the Act of 27 December 2005, would be modified once again. The new modification was introduced by an Act of 19 July 2006.
3
Art. 5 of the Act of 3 July 2005 has now been entirely rewritten.9 The new version of the provision gained in orthodoxy, although some grey areas still remain. Its first paragraph is made up of two sentences. In the first sentence, the legislator expressly adopts the principle of exemption from liability of volunteers for damage caused in the exercise of their activities,10 except in case they committed a fraud, a grossly negligent act or a slight but customary negligence. In the second sentence, the legislator stipulates that the organization is liable for the damage caused by a volunteer. Concerning this last point, one should probably understand any damage caused by a volunteer, not only the damage caused by a slight and non-customary negligence, but also the damage resulting from fraud, a grossly negligent act or slight and customary negligence.11 Nevertheless, this point of view is not the one expressed during the parliamentary works. According to these works, the organization would not be 8
9
10
11
Cf. in particular R. Marchetti/A. Pütz, La responsabilité civile et l’assurance des volontaires et de leurs organisations. Quand le texte de la loi entre en contradiction avec sa ratio legis…, Journal des tribunaux (JT) 2006, 385 ff. Art. 5 of the Act of 19 July 2006, entered into force on 1 January 2007 (according to art. 11 of the Act of 19 July 2006 modifying art. 24 of the Act of 3 July 2005). According to the parliamentary works, the notion of “voluntary activities” has to be widely interpreted. This means that the damage caused by the volunteer on the way to activities should be covered by the expression “in the exercise of their activities”. Cf. Parliamentary documents (Chambre des représentants de Belgique – Proposition de loi du 18 mai 2006 modifiant la loi du 3 juillet 2005 relative aux droits des volontaires/Belgische Kamer van volksvertegenwoordigers – Wetsvoorstel van 18 mei 2006 tot wijziging van de wet van 3 juli 2005 betreffende de rechten van vrijwilligers, doc. 51–2496/001, 10). G. Jocqué, Rechten van vrijwilligers. Wet van 3 juli 2005, Nieuw juridisch Weekblad (NjW) 2006, 731.
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liable in case of fraud, gross negligence or slight but customary negligence on the part of the volunteer.12 This explains why art. 5 is still subject to various interpretations. It is important to note that these two principles, contained in art. 5, are to be applied exclusively in three groups of cases:13 (1) when the activities exercised by the volunteer are organized by an association with legal personality; (2) when the activities are organized by an association without legal personality but being reasonably structured;14 or (3) when the activities are organized by a section of an association with legal personality or by a section of an association without legal personality but being reasonably structured. In other cases, that is to say in the presence of organizations without legal personality which are not sufficiently structured, the common liability mechanism is applicable: there is no exemption of liability and the organization, which in this case is not obliged to take out insurance, will not be liable for the damage caused by the volunteer. The volunteer exercising activities for such an association without legal personality will be personally and solely liable for the consequences of his/her negligent conduct, according to the rules of the Civil Code.15 One understands that, in such a situation, the taking out of an insurance contract remains very useful for the volunteer.16 Moreover, organizations that are not sufficiently structured have the obligation to inform their volunteers concerning the rules that would be applicable in case of their faulty conduct.17
4
One could also observe that the legislator took the opportunity of the new Act to confirm expressly that the liability insurance that has to be taken out by the organizations deemed to be liable according to art. 518 must be regarded as a compulsory insurance.19 This solution was already implicit since the adoption of the first version of the Act.20 Two Royal Decrees have been adopted determining the minimal conditions of guarantee that have to be offered by the insurance contract covering the civil liability of the organizations working with volunteers.21
5
12
13 14
15
16
17 18 19 20 21
Parliamentary documents (Chambre des représentants de Belgique – Proposition de loi du 18 mai 2006 modifiant la loi du 3 juillet 2005 relative aux droits des volontaires/Belgische Kamer van volksvertegenwoordigers – Wetsvoorstel van 18 mei 2006 tot wijziging van de wet van 3 juli 2005 betreffende de rechten van vrijwilligers, doc. 51–2496/001, 10). Art. 5 of the Act of 3 July 2005 as amended in 2006. That is to say an association without legal personality, made up of two or more persons who exercise a direct control on the functioning of the association and employ at least one person. Parliamentary documents (Chambre des représentants de Belgique – Proposition de loi du 18 mai 2006 modifiant la loi du 3 juillet 2005 relative aux droits des volontaires/Belgische Kamer van volksvertegenwoordigers – Wetsvoorstel van 18 mei 2006 tot wijziging van de wet van 3 juli 2005 betreffende de rechten van vrijwilligers, doc. 51–2496/001, 7). D. Simoens, De rechten van de vrijwilliger thans wettelijk bepaald, Rechtskundig Weekblad (RW) 2006–2007, 392. New art. 4(b) of the Act of 3 July as modified by the Act of 19 July 2006. Jocqué, NjW 2006, 732. New art. 6(3) of the Act of 3 July 2005 as modified by the Act of 19 July 2006. Durant (fn. 7) 157. Arrêté royal du 19 décembre 2006 déterminant les conditions minimales de garantie des contrats d’assurance couvrant la responsabilité civile extra-contractuelle des organisations travail-
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Finally, the legislator deleted the rule of evidence originally contained in art. 5. According to this (now old) rule, the one who received and signed an organization memorandum as a volunteer was presumed not to be a member of the association that had delivered it. The legislator not only waived this presumption but also the concept of “organisation memorandum” (note d’organisation/ organisatienota). This memo was conceived as being a written document containing all kinds of information (the goal and the legal status of the organization, the conclusion of the compulsory liability insurance, the cases in which indemnities had to be paid to volunteers, etc.). Notwithstanding the abolition of the concept of memorandum, the obligation for the organization to give some information to volunteers before they begin their activities is maintained. However, the legislator no longer determines the manner in which the information must be given. The onus of proof rests on the organization.22 2. Loi du 3 décembre 2005 instaurant une indemnité compensatoire de pertes de revenus en faveur des travailleurs indépendants victimes de nuisances dues à la réalisation de travaux sur le domaine public/Wet van 3 december 2005 betreffende de uitkering van een inkomenscompensatievergoeding aan zelfstandigen die het slachtoffer zijn van hinder ten gevolge van werken op het openbaar domein (Act of 3 December 2005 on Compensation for Economic Loss in Favour of Self-Employed Workers in Case of Nuisances Resulting from Works on Public Property)23
7
For many years,24 Belgian courts have held liable anyone who carries out activities on his own land causing an excessive nuisance to neighbours, even if his conduct may not be described as having constituted a fault. This doctrine of nuisance (théorie des troubles de voisinage/burenhinderleer) can be applied in various situations, including situations in which the excessive nuisance is due to activities carried out by a public body. This could be the case in particular when public authorities execute works on public property (such as roads) and when these works are executed in such a way that nuisances are imposed
22 23
24
lant avec des volontaires/Koninklijk besluit tot vaststelling van de minimumgarantievoorwaarden van de verzekeringsovereenkomsten tot dekking van de burgerrechtelijke aansprakelijkheid buiten overeenkomst van de organisaties die werken met vrijwilligers, Belgian official journal of 22 December 2006 (2nd ed.) 73834. Arrêté royal du 21 décembre 2006 déterminant les conditions et modalités de souscription de l’assurance collective couvrant la responsabilité civile extra-contractuelle des organisations travaillant avec des volontaires/Koninklijk besluit tot vaststelling van de voorwaarden en de wijze van het besluiten van de collectieve verzekering tot dekking van de burgerrechtelijke aansprakelijkheid buiten overeenkomst van de organisatie die werken met vrijwilligers, Belgian official journal of 22 December 2006 (4th ed.) 74218. Art. 4 of the Act of 3 July 2005 as amended by the Act of 19 July 2006. Belgian official journal of 2 February 2006 (2nd ed.) 5894 (Moniteur belge/Belgisch Staatsblad). The leading cases dated from 1960 (Cass., 6 April 1960, Revue critique de jurisprudence belge (RCJB) 1961, 257 ff., cmt. J. Dabin). For the first time at this moment, the Supreme Court established the legal justification for the liability, no longer in art. 1382 of the Civil Code (which is the statutory basis of tort law; cf. fn. 45), but in art. 544 of this Code. According to this last provision, “Ownership is the right to enjoy and dispose of things in the most absolute manner, provided they are not used in a way prohibited by statutes or regulations”.
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on neighbours, which exceed the levels that are to be borne by citizens in the general interest.25 One may observe such a situation when public works are undertaken in circumstances which make it (temporarily) difficult for people to reach shops located in the area of the works, this situation causing a financial loss to traders. To obtain compensation on the basis of the doctrine of nuisance, the disturbed neighbour has to show that the nuisance created a disturbance exceeding the normal level of nuisance considering the features of the area. Proceedings leading to compensation are often lengthy and expensive. Therefore, some members of Parliament considered that the law should offer the opportunity to small traders to receive compensation without any delay in case of nuisance. This is the goal pursued by the Act of 3 December 2005.
8
This Act is applicable in case of works of public utility performed on public property and concerns small business activities exercised by self-employed workers, disturbed for at least fourteen days due to the works in such a manner that consumers may experience difficulties or find it impossible to access the building in which the activity is exercised.26 In these situations, the Act grants to self-employed workers a right to obtain compensation for economic loss.27
9
Some conditions have to be fulfilled to benefit from the compensation: (1) the self-employed worker may not benefit from professional income other than the income resulting from the activity exercised in the building to which the access is impeded; (2) a public organism, called Fonds de participation/Participatiefonds (Participation Fund), must have considered the building in which the activity is exercised as being impeded.28 This implies that keeping the business in operation for at least fourteen days would be senseless from an operational point of view so that the self-employed worker must declare in his request for compensation that the shop will be closed;29 (3) the Participation Fund must also have approved the request for compensation brought by the self-employed worker.30
10
The compensation amounts to € 44.02 per day and will be paid monthly by the Fund to the self-employed worker as long as the access to the building is impeded and as long as the business is closed due to the nuisance. The amount is index-linked.31 The Fund is financed by the master builders according to guidelines contained in a Royal Decree.32
11
25
26 27 28 29 30 31 32
S. Boufflette, La théorie des troubles de voisinage: de l’équilibre entre protection et limitation, in: P. Lecocq/P. Lewalle (eds.), Contrainte, limitation et atteinte à la propriété (2005) 228. Cf. Cass., 23 November 2000, C.99.0104.F. Art. 2 of the Act of 3 December 2005. Art. 5 of the Act of 3 December 2005. Ibid. Art. 6(3) of the Act of 3 December 2005. Art. 5 of the Act of 3 December 2005. Art. 8(2) of the Act of 3 December 2005. Royal Decree of 10 June 2006 (published in the Belgian official journal of 26 June 2006 32257).
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As observed by a member of Parliament during the Parliamentary works, the new system introduces a complicated administrative procedure and provides for small indemnities.33 Therefore, it is not yet certain that the adoption of this Act constitutes real and effective progress. The future will tell. 3. Loi du 15 février 2006 relative à l’exercice de la profession d’architecte dans le cadre d’une personne morale/Wet van 15 februari 2006 betreffende de uitoefening van het beroep van architect in het kader van een rechtspersoon (Act of 15 February 2006 on the Practice of the Profession of Architect in a Legal Entity)34
13
In February 2006, the Belgian legislator adopted an Act on the practice of the profession of architect. This Act completes in particular the Act of 20 February 1939 on this profession, by introducing a new art. 2 and a new art. 9. Before the Act of 15 February 2006 modifying the Act of 1939 even entered into force, it was, in turn, already modified by an Act of 20 July 2006 containing various provisions.35
14
Art. 2 of the Act of 1939, as amended in 2006, gives indications as to who may practise the profession of architect. From now on, not only natural persons (with specific qualifications) may practise this profession: depending on various conditions, legal entities may also practise the profession of architect. Among these conditions, one can notice that the managers and directors of the legal entities exercising the profession of architect must be natural persons authorized to practise the profession and registered on the rolls of the architect association. One may also notice that at least 60% of the shares and the voting rights of the legal entity must be held directly or indirectly by such natural persons, so that the structure of the shareholding is transparent.36 Besides, the legal entity itself has to be registered. Various reasons were invoked in support of the bill of rights. Making easier the practice of the profession of architect in Belgium by foreign companies was certainly one of the goals pursued by the legislator. The main goal was nevertheless the wish to make it possible for architects to limit the financial burden resting on their shoulders, in case of lawsuit, to the amount of their initial capital in the legal entity.37
15
According to art. 2 and art. 9 of the Act of 1939, any person, natural person or legal entity, who is authorized to practise the profession of architect and whose liability may be engaged, due to his own acts or due to the acts of his servants carried out in the exercise of the profession of architect,38 must be covered by 33
34 35 36
37
38
Parliamentary documents (Chambre des représentants de Belgique/Belgische Kamer van volksvertegenwoordigers, doc. 51–1751/005, 9). Belgian official journal of 25 April 2006, 21731 (Moniteur belge/Belgisch Staatsblad). Belgian official journal of 28 July 2006 (2nd ed.) 36940 (Moniteur belge/Belgisch Staatsblad). Parliamentary documents (Chambre des représentants de Belgique/Belgische Kamer van volksvertegenwoordigers, doc. 51–1920/001, 7). B. Kohl, Aspects récents des conditions d’exercice de la profession d’architecte, in: Conférence libre du Jeune Barreau de Liège (ed.), Droit de la construction (2006) 23. The architect does not exercise his profession of architect for instance when he rents a building, when he takes on or dismisses employees, etc. Cf. Kohl (fn. 37) 39.
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insurance. This insurance may be included in a global insurance covering all parties participating in the construction. The King will specify in a Royal Decree the minimum conditions that are to be met in the insurance contract, such as the risks that are to be covered or the length of the guarantee.39 When the profession of architect is practised by a legal entity, the managers and directors are jointly liable for the payment of the premiums.40 Should the legal entity not be insured, breaching the law, managers and directors would be jointly liable toward third parties for the consequences of the decennial liability.41 In addition, natural persons and legal entities who practise the profession of architect without being insured are criminally punishable.42 4. Loi-programme (I) du 27 décembre 2006 (art. 113–133)/ Programmawet (I) van 27 december 2006 (art. 113–133) (Programme Act (I) of 27 December 2006)43 By an Act of 27 December 2006, the legislator created a Compensation Fund for Asbestos Victims (Fonds d’indemnisation des victimes de l’amiante/ Schadeloosstellingsfonds voor asbestslachtoffers), the object of which is to pay indemnities (monthly lump sums) for compensating damage caused to workers and resulting from an exposure to asbestos. This Fund is integrated into the Fund for occupational diseases (Fonds des maladies professionnelles/ Fonds voor de beroepsziekten), mainly receiving contributions from the State, employers and self-employed workers.
16
B. CASES44 1. Cour d’arbitrage/Arbitragehof (Court of Arbitration), 22 March 2006, 47/2006: Freedom of the Press and Privilege of Editors, Printers and Distributors a) Brief Summary of the Facts
S.M., a Russian national, took legal action against two journalists claiming that they had made serious accusations about him in articles published in a 39
40 41
42 43
44
A first draft of the Royal Decree has been drawn up and has been examined by the Insurance Commission which delivered a very critical comment. Cf. the notice C/2006/5 of the insurance commission of 13 November 2006 (Commission des assurances/Commissie voor verzekeringen) available on http://www.cbfa.be/fr/aboutcbfa/advorg/cvv/html/cvv_adv.asp. New art. 9(3) of the Act of 20 February 1939. New art. 9(4) of the Act of 20 February 1939. Cf. art. 1792 of the Civil Code according to which any builder of a work (including the architects) is liable for ten years towards the master for damage, even resulting from a defect of the ground, which imperils the strength of the building. New art. 11 of the Act of 20 February 1939. Belgian official journal of 28 December 2006 (3rd ed.) 75178 (Moniteur belge/Belgisch Staatsblad). All the commented decisions are to be found on the official website of the Belgian judicial power: www.juridat.be. The decision of the Court of Arbitration is to be found on the website of the Constitutional Court: www.arbitrage.be.
17
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Belgian national daily. The journalists had depicted S.M. as having bonds with a Russian gang. S.M. lost his case in the first instance and appealed against the decision. After having examined the facts, the court of appeal of Brussels considered that both Belgian journalists had misbehaved: they did not act like normally prudent and careful persons. However, art. 18 of the Labour Contract Act holds employees personally liable only for intentional conduct, gross or slight and customary negligence. Therefore, the journalists invoked the protection of this Act, considering that their negligent conduct constituted a slight but non-customary fault. Indeed, they were bound by an employment contract towards the editor of the daily.
18
From the moment the Belgian Constitution contained a specific provision relating to the liability of journalists, the court of appeal considered that the immunity of employees provided for in art. 18 of the Labour Contract Act was perhaps in contradiction with the Constitution. For this reason, the court of appeal decided to address a preliminary question to the Court of Arbitration. This Court had to decide whether art. 18 of the Labour Contract Act would conflict with art. 25 of the Belgian Constitution when the employee is a journalist. b) Judgment of the Court
19
First, the Court of Arbitration recalled that art. 25(1) of the Belgian Constitution recognizes the freedom of the press and that, according to art. 25(2), when the author is known and resident in Belgium neither the publisher nor the printer nor the distributor may be sued by the one who maintains that he has suffered as a result of the publication of a newspaper article. The Court indicated that the second part of art. 25 of the Constitution was introduced to break away from the previous regime, according to which, it was possible to sue the author, the publisher, the printer and the distributor collectively. Nowadays, with the aim of avoiding that the publisher, printer or distributor bring pressure to bear on authors, the Constitution organizes a mechanism of successive and isolated liability. The freedom of the press is therefore guaranteed because the journalist (resident in Belgium) knows that his publisher, printer or distributor may not be sued for what he wrote. The Court deduced from the above mentioned art. 25(2) that editors, printers and distributors benefit from a privilege because they escape from (penal and civil) liability when the author of a paper is known and resident in Belgium. Therefore, art. 25(2) of the Belgian Constitution constitutes a limitation of the scope of the general rule of liability laid down in art. 1382 of the Civil Code.45
20
Then the Court of Arbitration took an interest in art. 18 of the Labour Contract Act and considered that art. 25(2) of the Belgian Constitution would be violated should art. 18 be applied to journalists. According to the Court of Arbitration, if the traditional regime applicable in case of the faulty conduct of employees 45
“Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it” (translation by G. Rouhette, with the assistance of A. Berton, and published on the official website of the French Government: http://www.legifrance.gouv.fr/ html/codes_traduits/code_civil_textA.htm).
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(i.e. exemption from liability of the employee46 and liability of the employer47) were applicable to journalists bound by an employment contract, the mechanism of liability installed by the Constitution would be doomed to failure, because the journalist would run the risk of having his articles censored if the employer should have to assume the liability resulting from his conduct. Taking into account these considerations, the Court of Arbitration considered that art. 18 of the Labour Contract Act is not applicable to journalists bound by an employment contract.
21
c) Commentary
This art. 25(2) of the Belgian Constitution provides for a system of successive and isolated liability in such a way that there is only one liable party when the publication of a newspaper article constitutes a faulty conduct: the author of the article is first liable on the condition he is known and resident in Belgium; otherwise the publisher or the printer or the dealer will be liable. One may speak about a stepped system of liability.48 This system was elaborated with the aim of ensuring the (intellectual) autonomy of the journalist: the press must be free.
22
In 1996, the Supreme Court (Cour de cassation/Hof van Cassatie) expressly stated that the mechanism provided for in art. 25(2) of the Constitution concerns not only penal but also civil liability.49 The Court added that this provision brings about a restriction to the general rule of liability because it confers on publishers, printers and dealers the privilege to escape from penal and civil liability (at least when the author of the text is known and resident in Belgium), while the sole liability of the journalist may be engaged.
23
A few authors and a large number of judges tried to circumvent the effect of this case-law by adopting a reasoning founded on the Labour Contract Act when the journalist is bound by an employment contract. According to this (circumventing) reasoning, only the liability of the journalist may be engaged taking into consideration art. 25(2) of the Constitution, but in case of slight negligence of the journalist-employee, he escapes from liability taking into consideration art. 18 of the Labour Contract Act, while the liability of his master may be engaged on the basis of art. 1384(3) of the Civil Code.50 With this reasoning, the fact that the writer acts in his capacity of servant (or employee) overrides the fact that he is a journalist.51
24
46 47
48
49
50
51
Art. 18 of the Labour Contract Act. Art. 1384(3) of the Civil Code (vicarious liability of the masters for the damage caused by a fault of their servants committed in the course of their occupation). E. Montero, Quand la responsabilité en cascade cessera-t-elle de faire des vagues? JT 2006, 459. Cass., 31 May 1996, Pasicrisie (Pas) 1996, I, 559. Cf. also Cass., 24 January 1863, Pas 1864, I, 110. A. Vandeburie, La responsabilité en cascade (art. 25, al. 2 de la Constitution) des journalistes sous contrat d’emploi: suite et fin (?), Revue Générale de Droit Civil Belge/Tijdschrift voor Belgisch Burgerlijk Recht (RGDC/TBBR) 2006, 613. Montero, JT 2006, 460.
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25
This reasoning is now forbidden by the Constitutional Court. The Court of Arbitration expressly stated that the regime of art. 25(2) of the Constitution would be doomed to failure if art. 18 of the Labour Contract Act were applicable to journalists. From the moment the Constituent Assembly of 1831 wanted to punish those who misuse the freedom of the press and harm third parties, the capacity of journalist must override the capacity of employee.
26
As a result of the failure to enforce art. 18 of the Labour Contract Act to journalists bound by an employment contract, journalists have to be very careful: the least negligence, even minor, shall oblige them to compensate damage caused to third parties.52
27
This decision of the Court of Arbitration was the occasion for the Court itself and for the commentators to ask whether art. 25(2) of the Constitution has not become obsolete. It must be stressed that art. 25(2) dates from 1831, the year of the first version of the Belgian Constitution. At this time, the majority of journalists were real “opinion-leaders”,53 while publishers did not exercise any intellectual activities. Publishers, printers and dealers were “only” auxiliaries necessary to the journalists to express their ideas and opinions. To ensure the freedom of journalists and to avoid any pressure on them on the part of the publishers, printers or dealers, the Constituent Assembly discharged them from any liability. Briefly, one may say that art. 25(2) was adopted at a time when journalists were autonomous. Therefore, everyone is nowadays of the opinion that when the publisher participates intellectually in the writing of an article, he will be liable together with the journalist (who is no longer totally autonomous) if the paper causes a damage.54
28
Taking into account the ratio legis of art. 25(2) of the Constitution, some authors consider that it should be modified. These authors are indeed of a mind that publishers are no longer mere auxiliaries. For instance, most of the time, publishers define the editorial line of their dailies and they make fundamental and commercial decisions.55
29
This consideration leads some authors to write that the freedom of journalists has become practically illusory56 and that journalists pay the price of the risks that publishers and directors ask them to take.57 52
53
54 55 56 57
P. Defourny, Responsabilité de la presse. La faute légère accidentelle du journaliste, l’article 25, alinéa 2, de la Constitution et l’article 18 de la loi du 3 juillet 1978 relative aux contrats de travail, Revue de jurisprudence de Liège, Mons et Bruxelles (JLMB) 2006, 1401. K. Lemmens, Het Arbitragehof oordeelt dat enkel de journalist aansprakelijk is voor zijn geschriften, Auteurs & Media (A & M) 2006, 293. Montero, JT 2006, 461. Lemmens, A & M 2006, 293. Ibid. Defourny, JLMB 2006, 1401; Fr. Jongen, La responsabilité pénale et civile de la presse, Journal des procès (Journ. procès) 1991, 196/11; E. Montero, La responsabilité civile des médias, in: A. Strowel/Fr. Tulkens (eds.), Prévention et réparation des préjudices causés par les médias (1998) 99 f.; P. Robert, La responsabilité civile du journaliste, A & M 2000, 24.
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The Court of Arbitration perhaps shares this idea because it stressed that the situation of journalists has changed since the adoption of the Constitution in 1831. The Court is perhaps implying that art. 25(2) of the Belgian Constitution has become unsuitable for journalists in the 21st century, considering that most of them are bound by an employment contract. Anyway, should the Constitution have become obsolete on that point, it should only be for the Constituent Assembly to modify it. At the present time, the principle remains the sole liability of the journalist (known and resident in Belgium) and the exemption of the publisher when the publication of a paper causes damage to third parties.
30
2. Cour de cassation/Hof van Cassatie (Supreme Court), 16 January 2006, C.04.0252.F: Payments Subsequent to Fault and the Concept of Damage a) Brief Summary of the Facts
A road accident occurred after which a European Official died. The accident was caused by the faulty conduct of the insured of the defendant. According to the Staff Regulations of Officials of the European Communities, various amounts were paid by the European Community (or its insurer) in favour of the daughter of the victim.
31
After having paid these amounts, the Community intended to make use of Chapter 5 of the Staff Regulations to obtain from the insurer of the faulty driver the reimbursement of the sums paid in favour of the victim’s child. This Chapter 5 provides for a subrogation in favour of the Community,58 but notwithstanding the subrogation, art. 85(4) of the Staff Regulations recalls also that the Community may make use of a direct action.59
32
The European Community actually used a direct action as it summonsed the insurer on the basis of art. 1382 of the Belgian Civil Code.60 The Community was of a mind that, to the extent that its expenses in favour of the victim were not covered by the indemnities, the payment of which it was entitled to obtain from the insurer in pursuance of the subrogation, it could require the reimbursement of them from the insurer on the basis of the above mentioned provision.
33
The court of appeal of Brussels did not agree with this point of view. The court argued that the payment of the amounts, the reimbursement of which was claimed on the basis of art. 1382 of the Civil Code (and not in pursuance of the subrogation), did not aim at compensating the damage resulting from the road accident but consisted in the fulfilment of the Staff Regulations, although the
34
58
59
60
Art. 85a(1) of the Staff Regulations of Officials of the European Communities: “Where the death, accidental injury or sickness of a person covered by these Staff Regulations is caused by a third party, the Communities shall, in respect of the obligations incumbent upon them under the Staff Regulations consequent upon the event causing such death, injury or sickness, stand subrogated to the rights, including rights of action, of the victim or of those entitled under him against the third part”. Art. 85a(4) of the Staff Regulations of Officials of the European Communities: “The provisions of paragraphs 1, 2 and 3 may not be a bar to direct action by the Communities”. Cf. fn. 45.
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sums were paid after an accident due to the faulty conduct of a driver. Still according to the court of appeal, the Staff Regulations and not the faulty conduct of the driver constituted the cause of the payment. Therefore, the reimbursement of the amounts (not covered by the subrogation) was not awarded.
35
The European Community, represented by the Commission, did not agree with this refusal and appealed to the Supreme Court. b) Judgment of the Court
36
The Supreme Court quashed the decision of the court of appeal. According to the Supreme Court, the judgment had to be quashed in particular because the judges refused to award damages despite the fact that they did not ascertain that the European Community, by making the payment to the victim’s child, did not incur damage. The Supreme Court recalls on this occasion that the one who incurs damage may claim damages. c) Commentary
37
This decision was the occasion for the Supreme Court to confirm its case-law elaborated in 2001.61 According to this case-law, the fact that sums were paid in favour of the victim after an accident, in pursuance of an obligation (such as a legal or contractual obligation), does not automatically preclude the idea that the payment of these sums may constitute a damage for the one who made it. The Supreme Court added, however, that there is no damage when the debtor appointed by the law or by the contract and having made the payment in favour of the victim has to ultimately bear the onus of this expense.62
38
This case-law finds application in particular when a public body is obliged to continue to pay the salaries of a servant although the latter is no longer able to work due to the faulty conduct of a third party. The Supreme Court considers that the payment of the salaries during the period of temporary disability constitutes for the debtor of these salaries an own damage that may be recovered from the party who is declared liable for the disability.63 61
62
63
Cass., 19 February 2001, C.99.0014.N; C.99.0183.N; C.99.0228.N; C.99.0242.N; 20 February 2001, P.98.1629.N; 13 June 2001, P.01.0431.F; 16 October 2001, P.00.0184.N; 6 November 2001, P.99.1703.N; 6 November 2001, P.00.0444.N; 10 December 2001, C.98.0270.N; 30 January 2002, P.01.1393.F; 4 March 2002, C.01.0284.N; 24 September 2002, P.01.0455.N; 2 October 2002, P.02.0643.F; 9 April 2003, P.03.0049.F; 10 April 2003, C.01.0329.F; 3 December 2003, P.03.0367.F; 23 February 2004, C.03.0188.F; 9 January 2006, C.05.0007.N. This means without any possibility to obtain the reimbursement of the paid sums from the individual who caused the damage to the victim. In this case, the public body may also choose to be subrogated to the rights of the victim against the third party. Cf. art. 14(3) of the Act of 3 July 1967 on prevention and compensation of damage resulting from work accidents, accidents on the way to work and occupational diseases in the public sector (Loi du 3 juillet 1967 sur la prévention ou la réparation des dommages résultant des accidents du travail, des accidents survenus sur le chemin du travail et des maladies professionnelles dans le secteur public/Wet van 3 juli 1967 betreffende de preventie van of de schadevergoeding voor arbeidsongevallen, voor ongevallen op de weg naar en van het werk en voor beroepsziekten in de overheidssector).
Belgium
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In the commented judgment, the Supreme Court confirms its previous judgments in the sense that a payment made by a public body in pursuance of an obligation, in favour of the victim after an accident occurred, constitutes a priori a damage. To refuse the reimbursement to the debtor appointed by the law or by the contract by the liable party, the judges have to take into account that the latter did not incur an own damage or that he had to ultimately bear the onus of the expense. For the moment, it is generally admitted by scholars that the subrogation provided for by law is an indication that the legal or contractual debtor did not ultimately have to bear the onus of the expense and that he may therefore claim the reimbursement thereof.64 This point of view relies on a decision of the Supreme Court.65 However, this statement would perhaps not stand the test of time, considering that the debtor, as a result, obtains, on the basis of the rules relating to civil liability, what he could not obtain on the basis of subrogation. Moreover, do we not have to consider that the principle according to which every payment made in favour of the victim constitutes a priori a damage may lead to reimbursements of sums actually not paid with the aim of compensating a damage? The Supreme Court decision of 9 January 200666 perhaps indicates a movement in this direction. In this case, sums paid to the victim by the State in its capacity as employer were not considered as being recoverable from the liable party, considering that they did not represent the value of work services. Reflection to be continued…
39
3. Cour de cassation/Hof van Cassatie (Supreme Court), 12 May 2006, C.05.0021.F: Omission to Inform Patient a) Brief Summary of the Facts
A patient had a surgical operation (resection of a polyp), after which he was not informed by the surgeon that he had to come back quickly to the hospital in case of anomalies. An anomaly arose (perforation of the colon) and the patient waited ten hours before returning to the hospital. As a consequence of this delay, a serious treatment (laparotomy and colostomy) was necessary to treat the anomaly.
40
The judges considered that the patient lost a chance to be in the care of the doctors earlier and to benefit from a non-invasive treatment. They valued the lost chance ex aequo et bono at € 7,500 while the patient was of the opinion that his damage amounted to more than € 60,000.
41
64
65 66
However, as in the case of subrogation, the public body may not claim for more than the amounts that would have been asked by the victim, it frequently prefers to summons directly the third party on the basis of art. 1382 of the Civil Code. This way of working allows the public body to claim the reimbursement of amounts paid in favour of the victim (directly to the victim or to social security organisms or to the public treasury) when the subrogation would only allow to obtain from the liable third party compensation for the individual damage of the victim. I. Boone, De arbeidsongeschikte ambtenaar en het regres van de werkgever op de aansprakelijke, RW 2001–2002, 231 f.; S. Heremans, Les derniers arrêts de la Cour de cassation en matière de récupération par l’employeur des sommes versées pendant la période d’incapacité de travail à la victime d’un accident causé par un tiers, RGDC/TBBR 2001, 187. Cass., 19 February 2001, C.99.0014.N. Cass., 9 January 2006, C.05.0007.N.
106
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Isabelle C. Durant
The patient did not agree with this decision. He was of the opinion that a causal link certainly existed between the omission of the doctor to inform him about the possible consequences of the resection and the invasive treatment he had finally to undergo. This opinion could be explained on the basis of scientific literature. A great number of authors indeed stress the fact that a delay in the treatment of the perforation of the colon influences not only the consequences of the infection that follows the perforation but also the choice of the surgical method. The patient considered therefore that the damage caused by the negligent conduct of the doctor (i.e. the more invasive treatment) did not consist in the loss of a chance to undergo a less invasive treatment, but in the difference between his state of health after the invasive treatment and the state of health in which he would have been, had the treatment after the complications been less invasive. b) Judgment of the Court
43
The Supreme Court quashed the decision of the court of appeal. According to the Supreme Court, the judges were not allowed to decide that the damage suffered by the patient consisted in the loss of a chance of being treated more quickly after having first considered that the invasive treatment would have been avoided with a sufficient degree of probability if the patient had been informed by the surgeon that he had to return to the hospital very quickly in case complications arose. c) Commentary
44
Considering that the court of appeal awarded damages to the patient for having lost a chance to undergo a less invasive treatment and that the decision of the court of appeal was quashed by the Supreme Court, the judgment of this latter court seems at first sight to be a new disapproval of the theory of the loss of a chance. One may recall that since 2004, it would result from the case-law of the Belgian Supreme Court that the concept of the loss of a chance may no longer be used in case of causal uncertainty.67 This first impression is reinforced by the fact that the Supreme Court began its decision by saying that the one who negligently causes a damage to another is obliged to compensate the effectively occurred damage while we know that the lost chance in case of causal uncertainty is sometimes regarded as being imaginative and not effective.68
67
68
I.C. Durant, Belgium, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2004 (2005) 178 ff.; Durant (fn. 7) 176 ff. On the decision of 1 April 2004 and its consequences, cf. also, recently, R. Marchetti/E. Montero/A. Pütz, La naissance handicapée par suite d’une erreur de diagnostic: un préjudice réparable? La perte d’une chance de ne pas naître? RGDC/TBBR 2006, 117 ff.; A. Pütz/E. Montero, La perte d’une chance d’éviter la réalisation d’un risque: un préjudice illusoire? JLMB 2006, 1085 ff. X. Werquin, Pleadings of the public prosecutor preceding the decision of the Supreme Court of 1 April 2004, C.01.0211.F-C.01.0217.F (the pleadings are available on the website of the Belgian judicial power www.juridat.be together with the decision). B. de Temmerman, Kapitaliseren volgens ‘Levie’ of volgens ‘Schrijvers’. Twee visies op (on)zekerheid van schade, in: Liber Amicorum TPR en Marcel Storme (2004) 191. This last author speaks about “abstraction”.
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However, to consider that the commented decision is a disapproval of the theory of the loss of a chance in case of causal uncertainty seems to us too wide. Indeed, it must be stressed that the trial judges had considered that the invasive treatment would have been avoided with a sufficient degree of probability if the patient had been informed. After such an assertion, it was obviously no longer admissible to say that the patient lost a chance to undergo a less invasive treatment. Therefore we would not arrive at the conclusion that, in this decision, the Supreme Court adopted a clear cut position against the theory of a loss of chance.
45
Besides, this decision inspires us to make the following observation. In case of perforation of the colon, according to the scientific literature quoted by the judges, the quicker the patient arrives at the hospital, the lower the chances of an infection of the peritoneum by excrements will be and the more likely that nonsurgical methods of treatment will be necessary. On the contrary, the slower the reaction of the patient is, the higher the mortality rate is or, at least, the greater is the necessity to have recourse to surgical methods of treatment. Taking into account this literature, it is probably not foolish to make a connection between the celerity with which the perforation is treated and, on the one hand, the survival rate of the patient and, on the other hand, the choice of the medical treatment.
46
What seems less evident is to deduce from this “scientific” connection a causal connection between the lack of information given to the patient and the necessity to have recourse to an aggressive method of treatment. Indeed, even if he had been informed of the necessity to react promptly, is it certain that the patient would have decided to go to the hospital as soon as he suspected a complication of the resection? This was probably the right question to ask considering that the conduct reproached to the surgeon was a lack of information. We have to admit that it was not easy to answer this question with certainty.
47
It could be added here that generally in case of lack of information, the application of the conditio sine qua non test leads judges to ask whether the damage would also have occurred had the victim been correctly informed. To answer this question, they imagine what would have been the reaction of the well-informed patient. Although the application of the conditio sine qua non test should be made each time in concreto, Belgian case-law is inclined to determine the hypothetical behaviour of the well-informed patient by reference to the conduct of a reasonable patient placed in the same circumstances.69 Notwithstanding this case-law, one could ask, in particular following French authors, whether the damage resulting from a lack of information does not more exactly consist in the exposure to a risk, i.e. the risk for the patient not to be able to make a decision with full knowledge of the facts.70 From such a perspective, one would escape from the problematic obligation to establish a
48
69 70
Civ. Nivelles, 5 September 1995, Revue régionale de droit (Rev rég dr) 1995, 298. Fr. Alt-Maes, L’information médicale du patient, au cœur de la distinction entre responsabilité délictuelle et responsabilité contractuelle, Revue de droit sanitaire et social (RD Sanit Soc) 1994, 392 f.; M. Fabre-Magnan, Avortement et responsabilité médicale, Revue trimestrielle de droit civil (RTDCiv) 2001, 312 f.
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causal connection between the lack of information and the real occurred damage, but the difficulty would be to assess the damage, consisting in the deprivation of the possibility of a choice. Does the value of the damage in this case coincide with the real occurred one? 4. Cour de cassation/Hof van Cassatie (Supreme Court), 1 June 2006, C.05.0494.N: Liability of the State and Parliamentary Privilege a) Brief Summary of the Facts
49
One will remember that on 28 June 2005, the court of appeal of Brussels declared the Belgian State liable for the faulty conduct of a parliamentary commission. According to the court of appeal, this commission, in charge of an investigation into sects by a decision of the Chambre des représentants/Kamer van volksvertegenwoordigers, one of two Belgian federal legislative assemblies, had delivered a report written with great negligence and great tactlessness. Indeed, in this written report, one could read that the non-profit making organization Eglise universelle du Royaume de Dieu/Universele Kerk van het Rijk Gods (below “the Church”) is apparently a criminal organization, the sole aim of which is its enrichment, that its activities are almost fraudulent, that sexual scandals have happened within the organization, etc. This decision was reported in the previous Yearbook.71
50
Reporting this decision, we wrote: “By way of short conclusion, one may note that mathematically, the authors who approved the decision of the court of appeal seem to form the majority. Nevertheless, one should not lose sight of the fact that the Belgian State, represented by the President of the Chambre des représentants/Kamer van volksvertegenwoordigers, did not agree with the decision of the court of appeal and appealed to the Supreme Court. The case is therefore not really closed…”.72 In agreement with the authors who disapproved of the decision, the President of the legislative assembly was of the opinion that the freedom of speech and expression granted to members of the Parliament by the Belgian Constitution would become an illusion if the liability of the State could be engaged owing to their opinion or their vote. b) Judgment of the Court
51
The Supreme Court quashed the decision of the court of appeal considering that art. 58 of the Belgian Constitution, according to which none of the natural persons forming the legislative assembly may be sued on the occasion of opinions delivered or votes formulated in their functions, had been violated. After having clearly said that the State is not exempted as a general rule from compensating damage caused by the faulty conduct of Parliament, the Supreme Court qualified this general rule by adding that the trial judge is nevertheless not allowed to check the manner with which the members of Parliament express their opinion (orally or in writing). 71 72
Durant (fn. 7) 178 ff. Durant (fn. 7) 180.
Belgium
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Besides, the Court specified that the above mentioned art. 58 of the Belgian Constitution conforms with the limitations to the right of control of the acts of Parliament set by the European Convention on Human Rights.
52
The Court also said that this restriction to tort liability is to be explained, on the one hand, by the freedom of speech of the members of Parliament and, on the other hand, by the separation of the legislative power and the judicial power.
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c) Commentary
The commented decision was the occasion for the Belgian Supreme Court to voice an opinion on the question whether the liability of the Belgian State could be engaged due to the alleged damage caused by a parliamentary commission which expressed its opinion negligently in a written report. The Supreme Court answered the question in two steps: first, the Court laid down the principle that the liability of the State can be engaged due to the faulty conduct of Parliament; secondly, it nevertheless answered negatively to the above mentioned question, considering the freedom of speech from which the members of Parliament benefit, in accordance with the Constitution. These two points are worthy of some comments.
54
The Supreme Court expressly stated for the first time that the liability of the State can be engaged due to a faulty conduct of Parliament.73 According to the Court, the separation of the legislative and judicial powers does not constitute an obstacle to this principle: a judge may say that the legislative power acted in a faulty manner. By pronouncing this decision, the Supreme Court completes its triptych. Indeed, in 1920, the Court started the working out of the triptych when it decided that the liability of the State could be engaged due to the faulty conduct of the administration causing a damage (executive power)74 and, in 1991, it decided that the State could be held liable for the faulty conduct of a judge in the exercise of his judicial prerogative (judicial power).75
55
This part of the decision is generally received favourably by authors.76 Indeed, art. 144 of the Belgian Constitution stipulates that civil rights are under pro-
56
73
74
75
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In 1845, the Supreme Court refused to hold the State liable for a faulty conduct of the legislator (Cass., 27 June 1845, Pas 1845, I, 392). This point of view survived quite a long time. On this point, cf. R. Andersen, Quelques réflexions sur la responsabilité du fait des lois, in: Actualités du contrôle juridictionnel des lois (1973) 394 ff.; M. Leroy, La responsabilité de l’Etat législateur, JT 1978, 321 ff. The question of the liability of the legislative power is actually born with the creation of the Belgian Constitutional Court (Cour d’arbitrage/Arbitragehof) and with the case-law of the European Court of Justice relating to the liability of the Member States (EC Tort Law). Cass., 5 November 1920, Pas 1920, I, 193. In this leading case, a tree, located on the domain of the city of Brugge, fell on the private domain of a horticulturist whose crops were damaged, due to the negligence of the city of Brugge, who did not cut down trees whose roots were separated from the soil. Cass., 19 December 1991, Pas 1992, I, 316; RCJB 1993, 293, cmt. Fr. Rigaux/J. van Compernolle. In this leading case, the court of Brussels declared wrongly a company bankrupt. However, one author recognizes that the possibility to hold the State liable for a faulty conduct of Parliament is now admitted by the Supreme Court, but adds that this admission will not say
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tection of the judicial power and this rule is also applicable when one of these rights is affected by the State. It means that the State, including the legislative power, has to comply with laws, and especially with art. 1382 of the Civil Code, according to which, “Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it”.77 Besides, more and more judges78 and authors79 have recently expressed their support in favour of the possibility to declare the liability of the State engaged due to a faulty conduct of Parliament.
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The second part of the decision can be considered as an exception to the abovementioned principle. Indeed, the Supreme Court gives to the freedom of speech of members of Parliament such a wide scope that this freedom becomes an obstacle to the calling into question of the liability of the State for the negligent conduct of its members. According to the Court, the possibility for citizens to hold the State liable due to an oral or written opinion of a parliamentary commission composed of members of Parliament has to be removed because it is likely to limit their freedom. As we can see, the Court regards this freedom as being absolute. This point of view is applauded by some authors and criticized by others.
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Those who consider the decision in a positive manner share the opinion that art. 58 of the Belgian Constitution would be violated, could the liability of the State be engaged due to an opinion of a member of Parliament.80 They echo
77
78
79
80
that the principle is a good thing (K. Muylle, Overheidsaansprakelijkheid voor een fout van het parlement na het ‘sektenarrest’ van het Hof van Cassatie, Tijdschrift voor Bestuurswetenschappen & Publiekrecht (TBP) 2006, 439). He refers in particular to O. Gohin, La responsabilité de l’Etat en tant que législateur, Revue internationale de droit comparé (RIDC) 1998, 610. Translation by G. Rouhette, with the assistance of A. Berton, and published on the official website of the French Government: http://www.legifrance.gouv.fr/html/codes_traduits/code_civil_ textA.htm. Court of appeal of Liège, 25 January 1994, Pas 1993, II, 50; civ. Brussels, 17 March 1997, RW 1997–1998, 257, cmt. P. Popelier; court of appeal of Liège, 12 February 1998, JLMB 1998, 502, cmt. F. Abu Dalu; JT 1998, 511, cmt. S. Van Drooghenbroeck; civ. Liège, 17 November 2000, JT 2001, 299, cmt. Y.-H. Leleu; court of appeal of Brussels, 7 December 2000, JT 2001, 385; civ. Brussels, 16 February 2001, RW 2002–2003, 306; RGDC/TBBR 2003, 211, cmt. K. Muylle; civ. Brussels, 6 November 2001, RGDC/TBBR 2002, 15; court of appeal of Brussels, 4 July 2002, RGDC/TBBR 2002, 551; JLMB 2002, 1184; civ. Brussels, 20 September 2002, Tijdschrift voor Fiscaal Recht (TFR) 2003, 559, cmt. S. Ronse; Rb. Brugge, 18 February 2003, TFR 2003, 983, cmt. A. Kiekens. G. Maes, De afdwingbaarheid van sociale grondrechten (2003) 289 ff.; J.-N. Pardon/R.O. Dalcq, La responsabilité des Etats membres envers les particuliers en cas de manquements au droit communautaire, Journal des tribunaux de droit européen (JTDE) 1996, 201; A. Van Oevelen/P. Popelier, De aansprakelijkheid van publiekrechtelijke rechtspersonen voor ondeugdelijke wetgeving, in: W. van Eeckhoutte (ed.), Publiekrecht. De doorwerking van het publiekrecht in het privaatrecht (1997) 117 ff. (these authors are of a mind that the liability of the State may be engaged when the Court of Arbitration, the Belgian Constitutional Court (Cour d’arbitrage/ Arbitragehof), pronounced the unconstitutionality of a statute or delivered a decision according to which an unconstitutionality is indicated, founded on a lack of legislation); H. Vuye, Overheidsaansprakelijkheid wegens het doen en laten van de wetgever. Van Europees naar Belgisch recht: een (te) grote stap? in: H. Vandenberghe (ed.), Overheidsaansprakelijkheid (2005) 191 ff. Muylle, TBP 2006, 440.
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the public prosecutor according to whom, total freedom of opinion is necessary for the good functioning of a democratic parliament: the least restraint in the expression of an opinion would not be admissible; any interference or fear of interference, even indirect, would not be compatible with art. 58 of the Constitution.81 On the other hand, the critics of the decision acknowledge, hardly surprisingly, that the freedom of expression is of great importance in a democracy but are of a mind that it should not be considered as being absolute. They are of the opinion that this freedom is sufficiently guaranteed by the fact that none of the members of the Parliament may be sued before a court for an opinion expressed in the exercise of their legislative activities; the freedom should not lead, in addition, to an immunity of the State, the liability of which must be engaged if need be, despite the immunity of the member of the Parliament (for instance on the basis of the organ theory).82 This point of view should reconcile, on the one hand, the good functioning of the legislative power (thanks to the parliamentary privilege constitutionally recognized to the members of Parliament) and, on the other hand, the protection of the citizens (who could engage the liability of the State for the faulty conduct of Parliament).83 From this perspective, the freedom of speech and expression should, for instance, possibly be weighed against other rights, especially the right of respect of private life, which includes the right of honour, as established by the Belgian Constitution and by the Convention for the Protection of Human Rights.84
81
82
83
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Pleadings of the public prosecutor in the commented case, M. De Swaef, no. 9–10 (the pleadings are available on the website of the Belgian judicial power www.juridat.be together with the decision). Cf. also K. Muylle, Luidt artikel 1382 B.W. de doodsklok over artikel 58 G.W.? Chroniques de droit public/Publiekrechtelijke Kronieken (CDPK) 2005, 674. Durant (fn. 7) 180. Cf., especially, H. Vuye, Overheidsaansprakelijkheid voor het doen en laten van parlementaire onderzoekscommissies… waarom niet en waarom wel? RGDC/TBBR 2005, 514. One could here recall that in a previous decision, relating to the liability of the State due to the faulty conduct of a judge, the Supreme Court decided that the liability of the State is not necessarily excluded by the sole fact that the liability of its organ may not be engaged; it is for instance the case when the organ is not identified or when the organ is personally exempted from liability (Cass., 19 December 1991, Pas 1992, I, 365). A. Van Oevelen, De aansprakelijkheid van de Staat voor fouten van het Parlement: wel in de uitoefening van de wetgevende activiteit, maar niet voor de werkzaamheden van een parlementaire onderzoekscommissie, RW 2006–2007, 225. This right to honour is implicitly recognized in the Belgian Constitution that protects the right to respect of private life. According to S. Van Drooghenbroeck, this implicit recognition results from the fact that the interpretation of art. 22 of the Belgian Constitution has to be modelled on the interpretation given to art. 8 of the Convention for the Protection of Human Rights. Now, this interpretation includes the right of honour (S. Van Drooghenbroeck, JT 2006, 462). Cf. especially European Court of Human Rights (ECHR), 21 February 2002, application no. 42409/98, Wolfgang Schüssel v. Austria: “The Court recalls that Article 8 taken in conjunction with the obligation to secure the effective exercise of Convention rights imposed by Article 1 of the Convention, may involve a positive obligation on the State to provide a measure of protection for an individual’s private life in relation to the exercise by third parties of the right of freedom of expression bearing in mind the duties and responsibilities referred to in Article 10. The absence of a remedy in relation to the publication of information relating to private affairs may constitute a lack of respect for private life”.
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60
It is true that the Supreme Court took great care to indicate in its decision that art. 58 of the Belgian Constitution complied with the restrictions to the right of control of the acts of Parliament set by the European Convention on Human Rights. However, a thorough examination of the case-law of the European Court of Human Rights would maybe have led to another conclusion. As observed by a commentator, the European Court did not say that the freedom of expression of Parliaments would be absolute.85 That is the reason why it is maintained by some authors that the parliamentary privilege has to give way to other fundamental rights in certain circumstances.86
61
One could here recall the opinions expressed by two judges of the European Court of Human Rights. According to Judge Loucaides: “I believe that, as in the case of the freedom of the press, there should be a proper balance between freedom of speech in Parliament and protection of the reputation of individuals. The general absolute privilege of parliamentarians has an ancient history. It was established about 400 years ago when the legal protection of the personality of the individual was in its infancy and therefore extremely limited. In the meantime such protection has been greatly enhanced, especially through the case-law of this Court. This is exemplified by the expansion of the protection of privacy. The right to reputation is nowadays considered to be protected by the Convention as part of private life (see N. v. Sweden, no. 11366/85, Commission decision of 16 October 1986, DR 50, p. 173, and Fayed, cited above, pp. 50–51, § 67). Therefore ‘the State must find a proper balance between the two Convention rights involved, namely the right to respect for private life guaranteed by Article 8 and the right to freedom of expression guaranteed by Article 10 of the Convention’ (N. v. Sweden, op. cit., p. 175). This balance can only be achieved through a system which takes account of the individual facts of particular cases on the basis of the relevant conditions and exceptions attached 85
86
Van Drooghenbroeck, JT 2006, 463. This author refers to ECHR, 27 November 2003 application no. 62902/00, Zollmann v. United Kingdom: “It had regard to the special importance of safeguarding the freedom of expression of the elected representatives of the people, stating that in a democracy, Parliament or such comparable bodies are essential for political debate and that very weighty reasons must be advanced to justify interfering with the freedom of expression exercised therein”. Cf. also ECHR, 30 January 2003, application no. 40877/98, Cordova v. Italy (no. 1) no. 58 and no. 59: “The Court reiterates that, while freedom of expression is important for everybody, it is especially so for an elected representative of the people; he or she represents the electorate, draws attention to their preoccupations and defends their interests. In a democracy, the parliament and comparable bodies are the essential fora for political debate. Very weighty reasons must be advanced to justify interfering with the freedom of expression exercised therein (see Jerusalem v. Austria, no. 26958/95, §§ 36 and 40, ECHR 2001-II)”; ECHR, 30 January 2003, application no. 45649/99, Cordova v. Italy (no. 2) no. 59: “The Court observes that the fact that a State confers immunity on the members of its parliament may affect the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention, however, if the Contracting States, by adopting a particular system of parliamentary immunity, were thereby absolved of their responsibility under the Convention in relation to parliamentary activity”. On the immunity of the members of Parliament considering the caselaw of the European Court of Human Rights, cf. F. Krenc, La règle de l’immunité parlementaire à l’épreuve de la Convention européenne des droits de l’homme, Revue trimestrielle des Droits de l’homme (Rev trim dr h) 2003, 813 ff. Y. Thiels/I. Wouters, La responsabilité des pouvoirs publics. Le pouvoir législatif mis en cause: révolution ou simple évolution? JLMB 2006, 1545.
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to both rights. Such balancing implies that neither of the two rights should be allowed to prevail absolutely over the other. There should be a harmonious reconciliation, through appropriate qualification, so that the necessary protection is given to both rights. If freedom of speech were to be absolute under any circumstances it would not be difficult to imagine possible abuses which could in effect amount to a licence to defame or, as the US Supreme Court Justice Stevens said, ‘an obvious blueprint for character assassination’ [Philadelphia Newspapers Inc. v. Hepps, 89 L Ed 2d 783 (1986)]”.87 According to Judge Costa: “I should now like to make some more general remarks. As the third-party interventions make clear, parliamentary immunities exist throughout Europe, with slight variations, and I do not wish in any way to question the grounds for their existence. It is certainly essential for democracy that the elected representatives of the people should be able to speak freely in Parliament (whether they should outside Parliament is a different matter), without the slightest fear of being prosecuted for their opinions (or for the way in which they vote). But should this sacrosanct principle not be tempered? Since the 1689 Bill of Rights or the 1791 French Constitution (in which the principle was first established in France), relations between parliaments and the outside world have changed. Parliaments are no longer solely or chiefly concerned with protecting their members from the sovereign or the executive. Their concern should now be to affirm the complete freedom of expression of their members, but also, perhaps, to reconcile that freedom with other rights and freedoms that are worthy of respect. In spite of the very serious accusations made against the applicant and the severe damage sustained by her and her children as a result, A. v. the United Kingdom did not, in my view, appear to lend itself to efforts to bring about such a reconciliation. In fact, I am not at all sure that it should be for a court, even one with the task of applying the Convention, ‘an instrument of European public order (ordre public) for the protection of individual human beings’ (see Loizidou v. Turkey (preliminary objections), judgment of 23 March 1995, Series A no. 310, p. 31, § 93), to impose any particular model on the Contracting States in such a politically sensitive field. However, I am convinced that some progress in that field is desirable and possible on their part, and I was anxious to convey that point”.88 5. Cour de cassation/Hof van Cassatie (Supreme Court), 28 September 2006, C.02.0570.F: Liability of the State and Omission to Legislate a) Brief Summary of the Facts
On 21 November 1986, F.J. was apparently the victim of a surgeon’s negligence. She brought a lawsuit against him and the hospital for medical malpractice in 1987. In November 1995, after forensic examination, the court of first instance of Brussels awarded F.J. damages but the surgeon and the hospital appealed against the decision of this court in 1996. Due to the great number of 87
88
Dissenting opinion of Judge Loucaides, ECHR, 17 December 2002, application no. 35373/97, case A. v. the United Kingdom. Concurring opinion of Judge Costa, ECHR, 17 December 2002, application no. 35373/97, case A. v. the United Kingdom.
62
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cases awaiting trial before the court of appeal of Brussels, the case was put on a waiting list: it could probably be heard in June 2004 (which means nearly ten years after the decision of the court of first instance was pronounced).
63
Considering this significant delay, F.J. instituted another proceedings against the Belgian State, on the basis of art. 1382 of the Civil Code, to obtain compensation of the damage caused by the abnormal length of the (first) proceedings.89 She was successful before the court of first instance of Brussels (in 2001)90 and before the court of appeal of Brussels (in 2002)91: the courts awarded her damages, provisionally assessed at € 1 considering that the Belgian State committed a fault by not taking the appropriate measures for solving the problem consisting in the excessive length of the proceedings before the court of appeal of Brussels. Both courts considered in particular that the legislator was negligent by not taking the legal measures necessary to ensure the (good) functioning of the courts of Brussels, especially the measures aiming at providing a sufficient number of judges. According to the court of appeal of Brussels, the legislator had to take the appropriate measures to comply with art. 6.1 of the European Convention on Human Rights according to which “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law (…)”: this article would impose that every case be heard within a reasonable period of time.
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The Belgian State did not agree with the decision of the court of appeal and appealed to the Supreme Court. It was of an opinion that, by pronouncing such a decision, the judicial power interfered in the political process of the drafting of laws, when the legislative power did not have to justify itself to the judicial power (but only to the Nation). b) Judgment of the Court
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The Supreme Court did not quash the decision of the court of appeal. The Supreme Court indicated that the Belgian State, just as the governed people, has to repair the damage to the civil rights and legitimate interests of people resulting from its faulty conduct. It also added that the principle of the separation of the powers of the State (legislative, executive and judicial power), which aims to ensure an equilibrium between these powers, did not imply that the State, as a general rule, would be exempted from the obligation to repair the damage caused to people in the faulty exercise of its legislative function. Indeed, when a judge decides whether the State committed a fault or not, he does not interfere in the legislative function and in the political process of drafting laws, but he protects civil rights and the protection of the civil rights comes exclusively within the scope of duties of the judicial power.92 89 90 91 92
Concerning art. 1382 of the Civil Code, cf. fn. 45. Civ. Brussels, 6 November 2001, RGDC/TBBR 2002, 15; JT 2003, 865. Court of appeal of Brussels, 4 July 2002, JLMB 2002, 1184; RGDC/TBBR 2002, 551. Art. 144 of the Belgian Constitution.
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c) Commentary
The commented decision was once again the occasion for the Belgian Supreme Court to state that the Belgian State may be held liable for the faulty conduct of its legislative power and applied this principle.93 Just as in the above mentioned decision of 1 June 2006, the Supreme Court indicates first that the State is bound by the legal rules and especially by the rules governing the compensation of damage caused by faulty conduct. It results from this principle that a judge may consider that the State has to repair the damage caused by one of its organs. According to the Supreme Court, a judge who considers that the legislative power committed a fault does not interfere in the legislative function and in the process of making acts, but is acting within his own function which consists in the protection of civil rights.94
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Then, answering a second argument, the Supreme Court puts this principle into practice in the specific situation of non-respect by the legislative power for international conventions imposing an obligation on Belgium. In this particular case, the international convention that was to be respected was that contained in art. 6.1 of the European Convention on Human Rights. The omission to legislate was thus considered to constitute negligence considering the existence of a superior act imposing an obligation.
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Therefore, one may certainly not say that the Supreme Court decided that the omission to legislate would always constitute negligence. The decision of the Court concerns only the situation in which a superior act was not respected. This decision logically takes place in the evolution of Belgian and European case-law. At the Belgian level, an important step may be recalled: in 1971, the Supreme Court laid down as a principle the superiority of international norms over national norms.95 At the European level, do we have to remember the Francovich and the Brasserie du Pêcheur cases?96
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93
94 95 96
The decision was commented on in particular by: M. Uyttendaele, Du réflexe salutaire à l’ivresse du pouvoir. Premières réflexions sur les arrêts de la Cour de cassation Eglise universelle du Royaume de Dieu et F.J., JLMB 2006, 1554 ff.; A. Van Oevelen, De aansprakelijkheid van de Staat voor het foutieve verzuim zijn wetgevende bevoegdheid uit te oefenen, RW 2006–2007, 1124 ff.; J. Wildemeersch, L’arrêt de la Cour de cassation du 1er juin 2006 versus l’arrêt du 28 septembre 2006: le loup était déjà dans la bergerie, JLMB 2006, 1548 ff. Art. 144 of the Belgian Constitution. Cass., 27 May 1971, JT 1971, 471. European Court of Justice (ECJ), 19 November 1991, Francovich, case C-6/90 and C-9/90, [1991] ECR I-05357: “35 It follows that the principle whereby a State must be liable for loss and damage caused to individuals as a result of breaches of Community law for which the State can be held responsible is inherent in the system of the Treaty. 36 A further basis for the obligation of Member States to make good such loss and damage is to be found in Article 5 of the Treaty, under which the Member States are required to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under Community law. Among these is the obligation to nullify the unlawful consequences of a breach of Community law (see, in relation to the analogous provision of Article 86 of the ECSC Treaty, the judgment in case 6/60 Humblet v Belgium [1960] ECR 559). 37 It follows from all the foregoing that it is a principle of Community law that the Member States are obliged to make good loss and damage caused to individuals by breaches of Community law for which they can be held responsible”. ECJ, 5 March 1996, Brasserie du Pêcheur, case C-48/93 and C-/93, [1996] ECR I-05357: “31
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The new case-law may be applied in all cases in which Belgium had to comply with international norms, but did not take the appropriate measures to do so, because, in these situations, the judge would not interfere in politic choices. It is recalled that the Belgian State was ordered many times by the European Court of Human Rights to adopt the necessary measures to ensure the application of the European Convention.97 In other situations, that is to say when no rule imposes an obligation on the legislator to legislate, it should be more difficult to hold the State liable for a failure to legislate because such a judicial decision would imply a meddling of the judicial power in the activities of the legislative power.98 6. Cour de cassation/Hof van Cassatie (Supreme Court), 8 November 2006, P.06.0646.F: Motorist’s Wrongful Action in Exceeding the Speed Limit a) Brief Summary of the Facts
70
M. left his parking space and began a turning manoeuvre to the left without taking into account the arrival of the car driven by B.G. who had right of way. The judges considered that M. committed a fault in causal connection with the accident and its consequences. However, considering that B.G. also committed a fault, they decided that the responsibility of the accident lay with both M. and B.G. Indeed, B.G. was driving too fast, exceeding the maximum authorized speed by more than 10km/hour. B.G.’s insurer did not agree with this decision. According to it, the arrival of B.G.’s vehicle did not distrurb the legitimate expectations of M. Therefore, it should have been considered that the speeding was not causally linked to the accident. The insurer appealed to the Supreme Court. b) Judgment of the Court
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According to the Supreme Court, the judges did not have to verify whether the arrival of the vehicle with priority was foreseeable or not to conclude the existence of causality between the speeding and the damage resulting from the accident. Considering that the alleged faulty conduct of B.G. consisted of speeding, it was for the judges to verify whether the damage would have been the same without speeding. This decision was arrived at. Therefore their decision was not quashed by the Supreme Court.
97
98
In view of the foregoing considerations, the Court held in Francovich and Others, at paragraph 35, that the principle of State liability for loss and damage caused to individuals as a result of breaches of Community law for which it can be held responsible is inherent in the system of the Treaty. 32 It follows that that principle holds good for any case in which a Member State breaches Community law, whatever be the organ of the State whose act or omission was responsible for the breach”. Cf. the pleadings of the public prosecutor (J.-Fr. Leclercq) who refers in particular to ECHR, 15 July 2005, application no. 50575/99, Landsheer v. Belgium. Except perhaps in cases of peril for the State, as mentioned by the public prosecutor J.-Fr. Leclercq (the pleadings are available on the website of the Belgian judicial power www.juridat. be together with the decision).
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c) Commentary
From the moment the conditio sine qua non test is the sole test to be applied for establishing causation under Belgian tort law, each time a party implied in an accident was driving or had been driving too fast before the accident, causation should be considered to be established between the speeding and the consequences of the accident. The reason is that without speeding the driver would not have arrived at the point of the accident at the time when he did.99 This conclusion may seem unjust, especially when the driver was no longer exceeding the speed limit at the time of the accident. Therefore, some trial judges are sometimes tempted to say that the excessive speed is not causally linked with the damage when the vehicle into which the speeding driver crashed constituted a foreseeable obstacle. This reasoning does not seem admissible considering the commented case. Causation should not be established in a different way in cases of speeding. Therefore, the liability of a motorist may be engaged in particular when it appears that the damage would have been less serious without the excessive speed. To say that there is causation, the judge has to observe that the damage resulting from the accident would not have been the same without the excessive speed.
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C. LITERATURE100 1. P. De Tavernier, De buitencontractuele aansprakelijkheid voor schade veroorzaakt door minderjarigen (Intersentia, Antwerp 2006) 670 pp. This book contains a thorough study of non-contractual liability in case of damage caused by minor children, the author having sought a balance between the freedom, the protection and the liability of each person who is implied directly or indirectly in an accident caused by a minor child (the minor child, his/her parents, his/her teachers and supervisors, the liability insurers, the victims). The author analyzes not only the rules concerning tort law but also those concerning insurance law.
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2. Cl. Devoet/J.-L. Fagnart/C. Paris (eds.), La réparation du dommage. Questions particulières (Anthemis, Louvain-la-Neuve 2006) 178 pp. This book, containing five contributions on compensation of bodily damage, was published on the occasion of a symposium organized by the Conférence du Jeune Barreau de Mons, on 12 May 2006.
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First of all, D. de Callataÿ examines the writings of scholars and the case-law published in the past five years with the aim of selecting some particular questions with which practitioners are often confronted relating to court-ordered
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99
100
H.L.A. Hart/A.M. Honoré, Causation in the Law (1959) 115; H. Vandenberghe/M. Van Quickenborne/P. Hamelink, Overzicht van rechtspraak. Aansprakelijkheid uit onrechtmatige daad (1964–1978), Tijdschrift voor privaatrecht (TPR) 1980, 1367 f. Obviously, a selection…
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forensic examinations. In this way, the author deals with the establishment of lists of experts, with the independence of experts, with the right of the victim to obtain the appointment of an expert and, finally, with the task of the expert and with the financing of the examination.
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The second contribution is devoted to the evolution of longevity in Belgium and its impact on the capitalization of damages. It is the work of Prof. Dr. Chr. Jaumain.
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The judge Th. Papart wrote a contribution on particular damage or exceptional damage, that is to say damage which significantly exceeds the consequences normally observed with persons in a situation similar to that of the victim. In this perspective he examines exceptional non-pecuniary losses like exceptional pretium doloris (pain and suffering), exceptional aesthetic damage, exceptional sexual damage and exceptional “pleasure damage”.
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The contribution by Prof. Dr. J.-L. Fagnart concerns the loss of a chance. The author is of the opinion that the concept may still be used as designating a kind of damage (in case of certain loss of a probable advantage) but that the concept may no longer be used for masking causal uncertainty since the decision of 1 April 2004 of the Belgian Supreme Court.
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Finally, the last contribution, by N. Simar, R. Capart and S. Simar, concerns the recourse of the social security organisms having granted (partial) compensation to the victim. 3. E. Dirix/A. Van Oevelen (eds.), Bijzondere overeenkomsten. Artikelsgewijze commentaar met overzicht van rechtspraak en rechtsleer (Mechelen, Kluwer)
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The treatise on contracts edited by Prof. Dr. E. Dirix and Prof. Dr. A. Van Oevelen contains a part devoted to torts. This part has been enriched by a new contribution written by Prof. Dr. C. Van Schoubroeck and A. De Graeve on liability in cases of traffic accidents.101 The authors examine the specific regime compensating vulnerable victims of traffic accidents in which a motor vehicle is involved.102 4. J.-L. Fagnart (ed.), Responsabilités. Traité théorique et pratique (Kluwer, Brussels)
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The treatise on torts edited by Prof. Dr. J.-L. Fagnart became richer by four new manuals: F. Longfils deals with the liability of the financial intermediaries,103 C. Mélotte deals with some professional liabilities (notaries,104 lawyers,105 101 102
103 104 105
C. Van Schoubroeck/A. De Graeve, Verkeersaansprakelijkheid (2006). The legislation relating to this specific regime is commented on by D. Droshout, Belgium, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2001 (2002) 89 ff. F. Longfils, La responsabilité des intermédiaires financiers (Titre II/Livre 27) (2006) 88 pp. C. Mélotte, La responsabilité professionnelle des notaires (Titre II/Dossier 28) (2006) 68 pp. C. Mélotte, La responsabilité professionnelle des avocats (Titre II/Dossier 28bis) (2006) 52 pp.
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court bailiffs106), Prof. Dr. X. Thunis continues with his study on the general concept of fault107 and H. de Rode deals with liability insurance contracts.108 5. G. Viney/B. Dubuisson (eds.), Les responsabilités environnementales dans l’espace européen. Point de vue franco-belge (Bruylant/ Schulthess/LGDJ, Brussels 2006) 910 pp. This book contains various studies elaborated on the occasion of a seminar organized by the Centre de droit des obligations of the Université catholique de Louvain (UCL) and the Centre de recherche en droit privé of the Université Paris 1 (Panthéon-Sorbonne) and is devoted to environmental liability. This book is divided into eight parts.
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The first four parts of the book concern general aspects of environmental liability. Each of these general topics was examined successively by a member of the “French team” and by a member of the “Belgian team”. Studied from both points of view were: the foundations of environmental liability (Part I by Prof. Dr. Ph. Brun and Prof. Dr. X. Thunis), the causal connection (Part II by Dr. S. Carval and Prof. Dr. I. Durant), environmental damage (Part III by Prof. Dr. P. Jourdain and B. De Coninck) and the concept of class action (Part IV by Prof. Dr. G. Viney and M. Marchandise).
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In the fifth part of the book, the authors deal with three more specific topics, namely civil liability and nuclear energy (by C. Degros), marine pollution (by Prof. Dr. Ph. Delebecque for the French legislation and Prof. Dr. H. Bocken for the Belgian legislation), and licences to pollute (Prof. Dr. Th. Revet).
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The next part of the book is devoted to insurance, compensation funds and financial guarantees. Concerning French law, Dr. Fl. Millet and Prof. Dr. V. Heuzé deal with compensation funds and insurance, while Prof. Dr. M.-L. Demeester examines insurance and alternative mechanisms. The Belgian point of view is exposed by V. Callewaert whose contribution concerns insurance and alternative mechanisms.
85
The seventh part of the book concerns international private law and environmental liability. The contribution is due to Prof. Dr. M. Fallon, Prof. Dr. B. Fauvarque-Cosson and Prof. Dr. S. Francq.
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And finally, the last part of the book is specifically devoted to Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage.109 This Directive is first commented on by Ch. Pirotte
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106
107 108
109
C. Mélotte, La responsabilité professionnelle des huissiers de justice (Titre II/Dossier 28ter) (2006) 40 pp. X. Thunis, Théorie générale de la faute, Vol. 2 (Titre II/Livre 20bis) (2006) 64 pp. H. De Rode, Les assurances de responsabilité, Vol. 1 (Titre II/Livre 70) (2006) 59 pp.; Vol. 2 (Titre II/Livre 70bis) (2006) 46 pp. OJ L 143, 30.4.2004, 56–75.
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and then analyzed by Prof. Dr. N. De Sadeleer. In his contribution, Prof. Dr. P. Wessner gives a Swiss point of view on the topic.
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The book ends with some conclusive remarks by Prof. Dr. B. Dubuisson. The author observes that the compensation of environmental damage is the subject of many complex, polymorphous and extremely dissimilar regulations; the diversity concerns not only the sources of the regulations but also the mechanisms of compensation provided for in these regulations. According to the author, the European Directive on environmental liability does nothing but add complexity to the actual situation because it does not lead to harmonization. Concerning this Directive, the author concludes that the European text places a substantial liability on the public authorities and that the implementation of the Directive into national laws shall probably reveal that under cover of concepts deriving from civil liability the European legislator actually adopted a regime relating to administrative law. 6. L. Bihain, Responsabilités des dirigeants de sociétés à l’égard des tiers. Pas d’immunité en faveur des organes de sociétés, Journal des tribunaux (JT) 2006, 421 ff.
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The publication of the decision of 20 June 2005 of the Supreme Court was the occasion for L. Bihain to write an article on the liability of directors or managers of companies. The question arises whether the faulty conduct of directors or managers may engage the liability of the company itself toward third parties and under which conditions. In its decision of 20 June 2005, the Supreme Court decided that the fault of a director or of a manager committed at the time of negotiations of a contract leads to liability of the legal person (the company) but that this liability does not rule out the individual liability of the organ (namely the director or manager). Both liabilities may coexist.110 Relating to the individual liability of directors and managers, the author observes that the judges remain careful in the judgment of their conduct, ensuring them an indispensable freedom of action. 7. H. Bocken, Aansprakelijkheid van en voor minderjarigen, Bulletin des assurances/De Verzekering (Bull ass/De Verz) 2006, 301 ff.
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In this highly interesting contribution, Prof. Dr. H. Bocken evokes first personal liability of minor children on the basis of art. 1382 of the Civil Code (general status relating to civil liability).111 Considering that most of the time children are not (financially) solvent, the author recalls opportunely that the establishment of their liability does generally not lead to an effective compensation of the victim, except when the parents are covered by a specific insurance. Nevertheless, the author stresses that damage intentionally caused by children is generally excluded from insurance contracts. In a second and third part of the contribution, the author examines the liability of other persons when damage is caused by a minor child (parents, supervisor, State, etc.). In particular, he thor110 111
Cass., 20 June 2005, C.03.0105.F. Concerning art. 1382 of the Civil Code, cf. fn. 45.
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oughly examines art. 1384(2) of the Civil Code, according to which parents are presumed to be liable for the damage caused by their minor children. 8. I. Boone, Schadevergoeding voor vrijwillige prestaties, Nieuw juridisch Weekblad (NjW) 2006, 740 ff. It is a statement of fact that victims of accidents often receive help from third parties (mainly family members) who intervene willingly, for instance by making a donation or by providing care for nothing. Starting from this statement, the author examines first whether the help has to be taken into consideration at the time of evaluation of the damage suffered by the victim and of the compensation she is entitled to receive. Then the author answers the question whether the voluntary helper himself may seek compensation from the party who caused the damage. The author observes that in the past both questions received a negative answer: the voluntary helper might not claim any damages and the help was not taken into consideration to appreciate the damage suffered by the victim. Nowadays, and more precisely since the decision of the Supreme Court of 6 November 2001,112 the situation has changed: under some conditions, the voluntary helper may claim damages aiming to repair his own damage;113 this new principle has a direct impact on the situation of the victim because of the damage transfer, and, consequently, on the subrogation provided for in favour of third parties.
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9. X. Dieux, La responsabilité des administrateurs ou gérants d’une personne morale à l’égard des tiers: derniers développements?, Revue du notariat belge (Rev not b) 2006, 258 ff. In this article, the author considers the conditions under which third parties may sue directors or managers of a legal entity in the specific cases in which the law does not provide for any specific rules. He concedes that this topic is a cause of perplexity, as it appears from the decision of 20 June 2005 of the Supreme Court.114 In this context, he analyzes the situations in which the liability of the legal entity is likely to coexist with the individual liability of the organs of this entity (directors of mangers). He also devotes a part of his contribution to the special situation in which an organ has exercised wrongly a loss-making activity.
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10. J.-L. Fagnart, Petite navigation dans les méandres de la causalité, Revue générale des assurances et des responsabilités (RGAR) 2006, no. 14080 This article, divided into four chapters, is devoted by Prof. Dr. J.-L. Fagnart to causation. In the first chapter, the author examines some potential criteria of causation and indicates that the only criterion is “very simple”: that is the conditio sine qua non test. Then he gives some indications as to the methods for 112 113
114
Cass., 6 November 2001, P.99.1703.N. Cf. also cass., 4 March 2002, C.01.0284.N. Notably when his intention was not to bear (the value of) his intervention finally and when the situation of the liable party is not made worse. Cass., 20 June 2005, C.03.0105.F.
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establishing causation (evidence by means of presumptions, methods of reasoning and control of the reasoning of the trial judges by the Supreme Court). In the third chapter, the author deals with certainty and the theory of the loss of a chance. Finally, in the last chapter, he applies the principles to two particular situations. First, he examines the situations in which the faulty conduct consisted in the failure to inform patients and concludes that the establishment of a causal connection between the lack of information and the so-called damage is a perilous work. Then, he examines the situations in which bodily damage is not only caused by a faulty conduct but also by other events prior to the fault or not. 11. R. Marchetti/E. Montero/A. Pütz, La naissance handicapée par suite d’une erreur de diagnostic: un préjudice réparable? La perte d’une chance de ne pas naître?, Revue générale de droit civil belge/ Tijdschrift voor Belgisch burgerlijk recht (RGDC/TBBR) 2006, 117 ff.
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The contribution consists mainly in the comment of a decision delivered on 21 April 2004 by the court of first instance of Brussels relating to a case of wrongful birth. In this case, a child is born with Down’s syndrome. The parents sued three doctors reproaching them for various medical negligence without which they would have been correctly informed about the state of health of the baby before the birth and would have decided to abort. In the first part of the article, the authors analyze the possible grounds of the legal actions brought by the parents in their own names and in their capacity of representatives of the child (tortious or contractual liability). The second part of the article addresses the general conditions of medical liability and in the third part the authors consider whether the mother is allowed to plead the loss of a chance in the case it would not be possible for her to establish, with the required certainty, causation between the tortious conduct of the doctors and her damage.
III. Czech Republic Jiří Hrádek
A. LEGISLATION 1. Act No. 262/2006 Coll., Labour Code (“Labour Code”)1 The new Labour Code adopted on 21 April 2006, which became effective from 1 January 2007, represents autonomous legislation for the legal relationships arising within the performance of work between employers and employees, namely labour relationships, and some other issues as specified in sec. 1 of the Labour Code. The provisions of Act No. 40/1964 Coll., Civil Code (“Civil Code”), shall apply only if the Labour Code provides for such an application.
1
The Labour Code is based on the principle that the provisions are of a directory nature if not otherwise stipulated by the Labour Code, or if a mandatory nature does not result from the nature of the relevant provision. However, based on sec. 2 (1) of the Labour Code, compensation for damage is of a mandatory nature and cannot be modified by the respective parties.
2
Compensation for damage is regulated in the 11th Part called Damages, in particular in sec. 248 through 274 of the Labour Code. It is divided into the following five basic chapters: (i) Prevention of Damage, (ii) Liability of the Employee for Damage, (iii) Liability of the Employer for Damage, (iv) Joint Provisions on Liability for Damage and (v) Insurance Scheme in the Case of Industrial Injury and Occupational Disease.
3
(i) Prevention of Damage: Under this chapter, the obligations of both the employer and the employee are set forth. The employer is obliged to ensure such working conditions that the employees can properly perform their tasks without danger to their health and property. On the other hand, the employee must behave in such a way that no damage to health, property or unjust enrichment occur. Due to the similarity to the provision in sec. 415 of the Civil Code, this obligation of the employee must be considered as being a general provision for the determination of the standard of the employee’s care.
4
1
Zákon č. 262/2006 Sb., zákoník práce.
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5
Should there be a threat of damage, the employee must inform his superior, and if action is immediately necessary, the employee must hinder the damage that is threatening to the employer. In certain extraordinary cases this is not required, especially if the employee were to endanger himself or other employees.
6
(ii) Liability of the Employee: The liability of the employee is divided into the following cases: (a) general liability, (b) liability for neglecting his duty to prevent damage, (c) liability for deficit in entrusted valuables which has to be accounted for by the employee (schodek na svěřených hodnotách, které je zaměstnanec povinen vyúčtovat) and the loss of entrusted objects (odpovědnost za ztrátu svěřených předmětů).
7
The general nature of the employee’s liability is that it is liability based on fault. This conclusion results from the provision of sec. 250 of the Labour Code under which an employee is liable to the employer for damage which he causes through the faulty breach of his duties during the performance of his work tasks, or in direct connection therewith. The employer must prove the fault of the employee with the exception of cases of liability for a deficit in entrusted valuables and the loss of entrusted objects.
8
As concerns compensation for sustained damage, the liable employee shall compensate the employer for the actual damage, either by restitution in kind or in money. However, the amount of the compensation must not exceed 4.5 average monthly salaries before the breach of the duty that led to the damage. In the case of liability for neglecting the duty to prevent damage, this compensation amounts to only 3 average monthly salaries.
9
This limitation of damages does not apply if the damage was caused intentionally, while intoxicated or under the influence of other addictive substances. Moreover, should the damage be caused intentionally, the employer can also make a claim for compensation for lost profit. In the case of liability for a deficit in entrusted valuables and the loss of entrusted objects, the employee shall be held liable to the fullest extent without any restriction. However, the Labour Code, in sec. 260, stipulates special rules for cases when the liability for the deficit is several which led to a certain restriction of the duty to pay damages.
10
The liability of multiple wrongdoer-employees shall be several, distributed in accordance with their share of the damage caused. Similar to the Civil Code, in cases that merit special consideration the court can, in accordance with sec. 264 of the Labour Code, reasonably reduce the amount of damages.
11
(iii) Liability of the Employer: The liability of the employer is divided into the following cases: (a) general liability, (b) liability in cases of preventing damage and (c) liability for items deposited.
12
As opposed to the employee’s liability, the employer’s liability is strict (objektivní). Pursuant to sec. 265 of the Labour Code, the employer shall be liable for damage suffered by the employee in the performance of his work tasks or in
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direct connection therewith due to a breach of legal obligations or intentional conduct that is contrary to moral conduct (dobré mravy). The employer shall also be liable to the employee for damage that other employees, acting on the behalf of the employer, cause him by breaching their legal obligations while performing the work tasks of the employer. The liable employer shall compensate the employee for the actual damage, either in restitution in kind or in money. If the damage is caused intentionally, then the employee can also request compensation for other damage. However, the employer shall only be liable for employee’s items not handed over to the employer for safekeeping up to the amount of CZK 10,000 (approx. € 357). This rule does not apply if another employee causes the damage or if items were handed over to the employer.
13
An employer who has compensated an injured employee for damage is entitled to reimbursement from the person who is liable for such damage pursuant to provisions of the Civil Code (as previously mentioned, the regulation of the Labour Code is autonomous and the employee can choose between damages based on the Civil or Labour Code). The employer is entitled to reimbursement to the extent corresponding with the share of liability of such person.
14
(iv–v) Joint Provisions on Liability for Damage and Insurance Scheme in the Case of Industrial Injuries and Occupational Disease: These parts especially specify in more detail the conditions for the application of the previous provisions by setting forth definitions of terms used. They also determine that a special law shall regulate the scope and kind of damages in the case of industrial injuries and occupational disease. This law is Act No. 266/2006 Coll., on Accident Insurance of Employees (“Accident Insurance Act”)2, which shall become effective as of 1 January 2008.
15
Until the new accident insurance scheme for industrial injuries and occupational disease becomes effective, the Labour Code shall contain transitional provisions in sec. 365 ff. These provisions correspond in principle with the former legislation as laid down by Act No. 65/1965 Coll., Labour Code (“former Labour Code”), in particular in sec. 190 ff., and Decree No. 108/1994 Coll.
16
The most important changes, in comparison with the provisions of the former Labour Code, are the limitation of the amount of maintenance costs in the case of the death of an employee (a maximum of 50% or 80% of the employee’s average salary) and an increase in lump sum compensation for survivors (“pozůstalí”) (CZK 240,000, i.e. approx. € 8,572). Another change consists in the fact that, in cases which merit special consideration, the court can increase the compensation for pain suffered and aggravation of social position based on a provision of the Labour Code. Until now, the possible increase was based only on a provision of a statutory instrument, and not on a statute.
17
2
Zákon č. 266/2006 Sb., o úrazovém pojištění zaměstnanců.
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2. Act No. 160/2006 Coll., Which Changes the State Liability Act and Some Other Laws (“the Amendment”)3
18
The Amendment changes the current Act No. 82/1998 Coll., on Liability for Damage Based Either on Maladministration or on Illegal Decisions and on Changes in Act No. 358/1992 Coll., on Notaries and Their Activity (Notary Order) (“State Liability Act”)4 in the following points: (i) it establishes the right against the state and self-government units to the satisfaction of nonpecuniary damage, (ii) it specifies anew the scope of compensation for damage and (iii) it more closely specifies cases in which the injured party shall be entitled to claim compensation for damage. The Amendment became effective on 27 April 2006.
19
(i) The most important change is the establishment of the right to satisfaction for non-pecuniary damage, which had been subject to decisions of both the Supreme and Constitutional Courts on many occasions.
20
The Amendment establishes the liability of the state and territorial self-government units for non-pecuniary damage caused when performing public administration. This is a very profound change as, until now, the State Liability Act enabled only compensation for pecuniary damage and not non-pecuniary damage because case law, in connection with the doctrine, has generally defined damage as “any loss of property which can be objectively calculated into an equivalent value, i.e. a monetary value.”5 In contrast, Czech law also acknowledges damage to the non-material sphere of the injured party, for which the term “nehmotná újma” – non-pecuniary injury (damage) – is usually used. However, contrary to the expression and concept of damage, non-pecuniary damage can only become subject to damages (in Czech the terms compensation “náhrada” or satisfaction “zadostiučinění” are used) in certain cases set by law. The Civil Code sets forth rules for compensation for non-material damage, in particular in sec. 13, 19a and 444 ff. of the Civil Code.
21
Concerning the compensation for non-pecuniary damage, the Amendment sets forth the following principles:
22
(a) Under the State Liability Act, just satisfaction for a non-pecuniary damage shall be provided regardless of whether pecuniary damage was caused by maladministration or an illegal decision; (b) satisfaction shall be provided in 3
4
5
Zákon č. 160/2006 Sb., kterým se mění zákon č. 82/1998 Sb., o odpovědnosti za škodu způsobenou při výkonu veřejné moci rozhodnutím nebo nesprávným úředním postupem a o změně zákona České národní rady č. 358/1992 Sb., o notářích a jejich činnosti (notářský řád), ve znění pozdějších předpisů, zákon č. 201/2002 Sb., o Úřadu pro zastupování státu ve věcech majetkových, ve znění pozdějších předpisů, a zákon č. 40/1964 Sb., občanský zákoník, ve znění pozdějších předpisů. Zákon č. 82/1998 Sb., o odpovědnosti za škodu způsobenou při výkonu veřejné moci rozhodnutím nebo nesprávným úředním postupem a o změně zákona České národní rady č. 358/1992 Sb., o notářích a jejich činnosti (notářský řád). M. Pokorný/J. Salač in: O. Jehlička/J. Švestka/M. Škárová, Civil Code – Commentary (8th ed. 2003) 459; includes damnum emergens and lucrum cessans, R 55/1971.
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money if the non-pecuniary damage cannot be compensated in another way, or the public declaration of the breach of the law by the court’s judgment is not sufficient; (c) when determining the amount of the just satisfaction, the harm caused and the circumstances thereof must be taken into account; and (d) in certain cases of maladministration, the entire length and difficulty of the proceedings, the conduct of the injured party and the proceedings of the public body as well as the importance of the subject of the proceedings must also be taken into account. The claim for compensation for non-pecuniary damage under the State Liability Act shall become statute-barred 6 months after a party becomes aware of the injury caused, and no more than 10 years from the occurrence of the act connected with the injury. If the injury is caused by maladministration, the claim cannot become statute-barred earlier than 6 months from the proceedings’ termination.
23
In addition, the limitation period shall be suspended for the period from the asserting of the rights until the termination of the preliminary hearing. However, this suspension shall not exceed 6 months.
24
Further, the Amendment changes the conditions for making claims for damages. Pursuant to sec. 14 of the State Liability Act, the claim for compensation for damage must first be asserted against the Office for Representing the State in Property Matters whereas this course is an unavoidable condition for a prospective petition for damages in civil proceedings.
25
(ii) As concerns the extent of compensation for damage, a significant change was also enacted. Lost profit shall no longer be compensated by a fixed monthly sum, but by an actually authenticated amount. If the lost profit cannot be assessed, the injured party shall be compensated with an amount of CZK 170 (approx. € 6) for every day the injured party is in custody, imprisoned, under protective treatment or protective rehabilitation.
26
(iii) As Czech law had not complied with the requirements of the Convention on the Protection of Rights and Basic Freedoms (“Convention”),6 regarding the scope of compensation for the breach of guaranteed rights, the Amendment sets forth some changes hereto. First, state liability for illegal decisions and maladministration shall also apply to cases of a breach of personal freedom regardless of whether the restriction of the freedom happened in civil or criminal proceedings. Second, the state shall also be held liable for damage caused by an illegal decision or maladministration in the case of an “extradition custody”, which was impossible under the previous wording, and third, for an inadequate term of proceedings.
27
Despite representing a significant change to the current understanding of state liability, certain criticisms should also be mentioned with respect to the new
28
6
Sdělení FMZV č. 209/1992 Sb., o úmluvě o ochraně lidských práv a základních svobod ve znění protokolů č. 3, 5 a 8.
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law. The Amendment did not establish certain kinds of liability, despite the fact that such liability should already have been subject to the regulation of the State Liability Act for some years. This failure relates especially to state liability for a breach of European law, the liability for legislative measures, and for wrongful performance of the judiciary. The legislator apologises in the explanatory memorandum on the Amendment for this missing regulation by the necessity to examine these kinds of liability and their nature and for not coming up with theoretical solutions within the Czech national law.7 However, the legislator was certainly granted enough time to do so in the past, so that such an explanation cannot satisfy anybody who deals with this imperfection of the law.
29
Amendment to the Civil Code: This law also changed the current Civil Code in sec. 447 (3), which authorises the Czech Government to amend the conditions, amount and kind of compensation for the loss of earnings after the inability to work or during disability. Now, the Government can also increase the amount of maintenance costs for survivors. Based on this Amendment, both the Labour and the Civil Code contain the same authorisation for the Government. 3. Act No. 182/2006 Coll., on Insolvency (“Insolvency Act”)8
30
The new Insolvency Act, which shall become effective as of 1 January 2008, enables a wider scale of solutions to insolvency9 than the previous Act No. 328/1991 Coll., on Bankruptcy and Composition. Moreover, it sets forth in a very detailed manner the rules on proceedings. The solutions to insolvency stipulated by the Insolvency Act can be listed as follows: (i) bankruptcy, (ii) reorganisation, (iii) discharge from debts and (iv) special proceedings for certain entities as stipulated by the Insolvency Act. It must be mentioned that reorganisation applies only if the debtor is an entrepreneur and a discharge from debts applies if the debtor is not an entrepreneur.
31
As for liability, the Insolvency Act contains various provisions concerning the liability of the bankruptcy trustee, the debtor and creditors as well as some other provisions on liability for damage relating to specific cases.
32
The liability of the debtor and trustee as well as other persons who are subject to any duty stipulated by the Insolvency Act represents standard provisions concerning compensation for damage. Such liability should be understood as a case of strict liability. The crucial provisions for the trustee’s liability are stipulated in sec. 37 ff. and the debtor’s in sec. 99 ff. of the Insolvency Act.
7 8 9
Explanatory memorandum on the Amendment (Act No. 160/2006 Coll). Zákon č. 182/2006 Sb., o úpadku a způsobech jeho řešení (insolvenční zákon). In accordance with sec. 3 of the Insolvency Act, insolvency exists (i) if the debtor has many creditors to whom he is unable to meet his obligations and his obligations are due over a period longer than 30 days or (ii) if such person is overburdened by debts. This arises if the debtor has many creditors and if his obligations exceed in amount the value of his property. Only the second definition of insolvency relates exclusively to entrepreneurs and legal entities.
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Completely new is the concept of the liability of creditors for the incorrect amount of receivables and claims submitted in the bankruptcy proceedings, as laid down in sec. 178 ff. of the Insolvency Act. Under these provisions a creditor who has submitted a receivable into the bankruptcy proceedings but the proved amount thereof does not exceed 50% of the amount submitted shall compensate the other creditors for the difference between the submitted and proved amount of receivables. The same applies to the alleged amount of security relating to the particular receivable.
33
4. Act No. 264/2006 Coll., on Change to Some Acts in Connection with the Adoption of the Labour Code (“the Act”)10 The Act is a reaction of legislation to the new Accident Insurance Act (see fn. 2) which shall regulate as of 1 January 2008 in a comprehensive matter compensation for damage in cases of industrial injury and occupational disease. Such provisions were subject to a regulation in sec. 206 of the former Labour Code (see supra no. 16) and currently are placed in the transitory provisions of the new Labour Code (see fn. 1) until the new Accident Insurance Act becomes effective.
34
Based on these changes, the legislator decided on the incorporation of the following provisions into the Civil Code which shall become effective as of 1 January 2008. Under this law, the liability of persons with regard to individuals executing public functions, taking part in defined public events or helping an administrative body, voluntary fire fighters, physicians of the Red Cross, members of the alpine rescue service, blood donors, pupils or students and some others shall be established as a case of strict (objektivní) liability. Save for the liability of schools, as set in sec. 426 of the Civil Code, the liable party cannot release itself from liability.
35
As concerns the liability of schools, the relevant elementary school shall be liable to pupils for damage caused by the school’s breach of legal duties, or by an injury sustained during class or in direct connection with a class; when education takes place outside the classroom or outside the educational institution, the relevant school is liable for any damage caused thereby or sustained in direct connection therewith. If the relevant school or educational institution does not have the legal capacity to enter into legal relations in its own name, and is therefore not legally responsible for duties arising from such relations, the founder of the relevant school or educational institution shall be liable for any such damage.
36
The universities and high schools shall be liable to their students for damage caused by the school’s breach of legal duties, or by an injury sustained during theoretical or practical education at school or in direct connection with a class. If damage arises during practical training or in direct connection with such training carried out by a person or legal entity, this person or legal entity shall
37
10
Zákon č. 264/2006 Sb., o změně některých zákonův souvislosti s přijetím zákoníku práce.
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be liable for any damage caused. Additionally, in the case of a high school, when education takes place outside the classroom or outside the educational institution, the relevant school is liable for any damage caused thereby or sustained in direct connection with such training.
38
A certain part of the Act concerning damages became effective already on 1 January 2007. It regulates cases of liability for damage to a pupil’s or student’s health which were previously regulated in the former Labour Code. These provisions were ranged into sec. 447 (3) of the Civil Code.
39
Under this law a pupil or student shall be entitled to compensation for loss of earnings from the day he should have completed his compulsory education, college studies, or other professional preparation, a) for the period extending his compulsory education, college studies, or other professional preparation, due to injury or occupational disease, b) for the period of temporary inability, caused by injury or occupational disease, c) for the period of disability, incurred in connection with injury or occupational disease, d) for the period of partial disability, incurred in connection with injury or occupational disease, or if he is, in this connection, acknowledged to be physically handicapped, unless he neglects, through his own fault, the opportunity to gain earnings by performing appropriate work.
B. CASES 1. Ústavní soud (Constitutional Court) 13 July 2006, I ÚS 85/04: Constitutional Complaint Against the Scope of Damages in the Case of State Liability11 a) Brief Summary of the Facts
40
The plaintiff was sentenced to six months in prison for a crime pursuant to sec. 272c of Act No. 140/1961 Coll., Criminal Act (“Criminal Act”)12 (evading civil military service) in 1991, which was later changed to a conditional sentence. By a decision of the District Court in Kolín in 1992 the plaintiff was convicted of the same crime and sentenced to unconditional imprisonment for eight months, based on which the previous conditional imprisonment was changed to unconditional. Consequently, the plaintiff served both sentences, completing a total of 14 months of imprisonment.
41
Against the second conviction, the Ministry of Justice used its right under Act No. 141/1961 Coll., Act on Criminal Judicial Procedure (“CPA”)13 and filed a complaint against a breach of law. After many appeals and two decisions by the Constitutional Court, the Supreme Court finally overturned the verdict based on a breach of a basic constitutional principle “ne bis in idem”. Together with 11
12 13
Sbírka rozhodnutí Ústavního soudu České republiky (Collection of Decisions of the Constitutional Court of the Czech Republic) 2006, 1524. Zákon č. 140/1961 Sb., trestní zákon. Zákon č. 141/1961 Sb., o trestním řízení soudním (trestní řád).
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the second conviction “all related decisions” were reversed. However, the Supreme Court did not specify the reversed judgments. Therefore, it was unclear whether the judgment that had changed the first conditional conviction to an unconditional was also reversed. Based on this the plaintiff filed a petition for compensation under the State Liability Act (see fn. 4). The plaintiff reasoned the petition based on the liability of the state for an illegal decision and maladministration pursuant to Act No. 58/1969 Coll., on Liability for Damage Caused by a Decision of a State Body or by its Maladministration (“former State Liability Act”)14. However, Prague 2 District Court dismissed this petition for payment in the amount of CZK 304,356 (approx. € 10,870) for illegal imprisonment. Later, both the court of second instance and the Supreme Court confirmed this judgment.
42
In the mentioned proceedings, the following disputable questions were dealt with, which became subject to the constitutional complaint: (i) whether the convicted should be entitled to an adjusted loss of earnings, or only to the actual, non-adjusted amount (CZK 2,000 instead of 5,000 – approx. € 179), (ii) whether he should be entitled to damages for non-pecuniary damage or just satisfaction and (iii) what should be considered under the term “all related decisions”. The first two issues are of special importance for the topic of delictual liability.
43
b) Judgment of the Court
The Constitutional Court mentioned that it had already expressed in its previous decisions that the criminal proceedings and the resulting sentence represent a serious interference with the personal freedom of an individual and may implicate negative consequences on his life and relations.
44
Based on this, such interference is able to breach the right to personal freedom guaranteed under Art. 8 (1) of the Charter of Humans Rights and Basic Freedoms (“Charter”) as a part of the Czech Constitution15, and it is also able to restrict or breach the individual’s rights concerning his personality, his private and family life, dignity, honour and good reputation guaranteed under Art. 10 of the Charter. Moreover, without a doubt, illegal prosecution or imprisonment can cause not only pecuniary but also non-pecuniary damage.
45
The Constitutional Court in decision No. Pl. ÚS 16/0416 already dealt with the issue of compensation for non-pecuniary damage as a part of the compensation for damage in general as set forth in sec. 442 of the Civil Code. The Constitutional Court examined whether it is possible to interpret the provisions of the
46
14
15
16
Zákon č. 58/1969 Sb., o odpovědnosti za škodu způsobenou rozhodnutím orgánu státu nebo jeho nesprávným úředním postupem. Usnesení předsednictva ČNR č. 2/1993 Sb., o vyhlášení Listiny základních práv a svobod jako součásti ústavního pořádku České republiky. J. Hrádek, Czech Republic, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2004 (2005) 193 ff.
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Civil Code regulating compensation for damage in such a way that it would also cover claims for compensation for non-material damage consisting in the loss of a close person. The Constitutional Court concluded that under the current legislation, a non-pecuniary injury cannot be compensated as damage. However, this does not exclude the further actions of injured parties for satisfaction under the provisions concerning the protection of personality rights in accordance with sec. 11 and 13 of the Civil Code. Nevertheless, based on current legislation measures, such a claim represents a different one from the claim of damage.
47
The Constitutional Court expressed in this respect its need to emphasize that it would be more correct from the legislative point of view to leave the current qualification of damage as pecuniary damage. It proposes to extend the definition of damage to any harm to the physical and intellectual integrity of the injured person. The Constitutional Court mentioned, with respect to the qualification of damage, the approach expressed in the Principles of European Tort Law, which, despite being based on a private initiative, have a wide impact on European legislation.
48
With respect to the present case, the Constitutional Court drew the conclusion that the mentioned judgment of the plenary of the Constitutional Court must be amended in relation to compensation for damage for the illegal restriction of freedom. Such claims are reasoned not only by the simple (national) law but also by Art. 5 (5) of the Convention (see fn. 6). This provision is directly applicable pursuant to Art. 10 of the Czech Constitution and takes precedence over the national law.
49
Regardless of how the Czech legislator, the case law of the general courts as well as the Constitutional Court, or the civil law doctrine, deals with the legal term “compensation for damage” in the area of the national application of the Convention, this term must be interpreted in accordance with the application of the European constitutional and supreme courts. These courts give rise to the case law of the European Court for Human Rights (“ECHR”).
50
Thus, regardless of the anachronism of the Czech legislation which the Constitutional Court accepted in the above-mentioned decision, and which only exhorted the legislator to bring the Czech legislation closer to the European understanding of the delictual law, the Czech concept of damage and its compensation cannot apply to a case in which the Convention shall apply. Without a doubt, in the area of application of the Convention, either at the national or European level, both pecuniary and non-pecuniary damage must be understood under the term damage.
51
This conclusion can be supported by a historical interpretation of Czech legislation, in particular by the latest amendment to the State Liability Act (see supra no. 18 ff.). This Amendment incorporated into Czech legislation the claim for compensation for non-pecuniary damage arising as the result of an illegal decision or maladministration. The explanatory memorandum on the Amend-
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ment commented on the drawbacks of the former legislation as follows: “Act No. 82/1998 Coll. does not enable sufficient compensation for illegal imprisonment, which is guaranteed by Art. 5 (5) of the Convention. This provision requests that in the case of any breach of Art. 5 (1–4) of the Convention in any legislation the right to compensation must exist. However, the regulation included in Act No. 82/1998 Coll. fails to do so.” In other words, the motivation for the enactment of this new law was inter alia to develop the national legislation measures in conformity with the requirements of the Convention. In conclusion, when the former legal regulation allowed compensation for material damage only, it was the duty of the courts, under whose protection the basic rights of an individual are, to preferentially apply Art. 5 (5) of the Convention in the form following from the case law of the ECHR.
52
Concerning the objection of the plaintiff to the amount of the lost profit it is the question whether it should be adjusted or not. The Constitutional Court referred this issue to the general courts for consideration when deciding on compensation for non-pecuniary damage. It obliged them to take into account the period during which this compensation was withheld and also the fact that the general courts, and especially the Supreme Court, flagrantly breached the law when deciding on this issue.
53
c) Commentary
To begin, certain remarks must be made with respect to the Constitutional Court. The Constitutional Court does not present any further instance of the general courts, nor is it in any sense a superior instance. It shall only protect the constitutionality in the Czech Republic by control of the decision-making activity of the general courts, provided that it breaches the guaranteed basic rights and freedoms of the individual.
54
Therefore, the Constitutional Court is bound only by the Czech Constitution (largo sensu) and by the Act on the Constitutional Court. When revising decision-making activities it takes into account not only the simple national law, but also the principles of the constitutional law resulting especially from the Charter as a part of the Constitution and the international treaties on the protection of basic rights and freedoms. The Convention is one of the most used sources of these principles.
55
Based on this, very strong differences between the judgments of the Supreme Court and the Constitutional Court can be found. A typical example is from the year 2005 when the Supreme Court decided on the same matter as in this case, but it rejected all of the plaintiff’s claims.17 The Supreme Court dismissed the petition for the compensation of non-pecuniary damage, reasoning that the claim for compensation for non-pecuniary damage for being convicted of a crime and serving time in prison is not authorised by the State Liability Act,
56
17
Hrádek (fn. 16) 199 ff.
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which presents a lex specialis to the Civil Code. Therefore it cannot be deduced therefrom, the Supreme Court ruled, that the court could base its decision on claims which are not set forth in the State Liability Act. The awarding of just satisfaction pursuant to art. 41 of the Convention which could justify the plaintiff’s compensation is, in the opinion of the Supreme Court, subject to the decision of the ECHR.
57
The Supreme Court applied this argumentation also in the present case; however, the Constitutional Court applied another criterion and overruled the conclusions of the general courts.
58
The Constitutional Court concluded that, regardless of how the Czech legislator, case law and doctrine use and interpret the legal term “damage” in the State Liability Act, in the field of the national application of the Convention this term must be interpreted in accordance with the application by the European constitutional and supreme courts. Therefore, in the area of application of the Convention, either at the national or at the European level, both pecuniary and non-pecuniary damage must be understood under the term damage.
59
This conclusion evidently follows the previous decisions of the Constitutional Court in which it expressed its wish to change the common understanding of the term “damage”. It follows further the change of the current legislation as it was amended by Act No. 160/2006.
60
Regarding the particular amount of the compensation for lost profit, it seems that the Constitutional Court is unlikely to award the amount adjusted, as it has not pleaded for such compensation. Moreover, in this respect, the Supreme Court has already decided that the current level of the average earnings in the Czech Republic is not a decisive circumstance for the adjustment of the compensation (Supreme Court 25 Cdo 1072/2003). However, the Constitutional Court evidently wishes to award certain compensation for the time of delay in proceedings before the general courts. 2. Nejvyšší soud České republiky (Supreme Court) 25 October 2006, 25 Cdo 1129/2005: Liability of a Medical Centre for Damage18 a) Brief Summary of the Facts
61
The plaintiff suffered an injury to the spinal cord and the consequential dysfunction of the mobility of all limbs as a result of an operation performed in 1996. The operating surgeons chose the correct method for the operation, using an instrument called “wire globules”, which was the only solution for the plaintiff, who was suffering from a dysfunction of the spine. The surgeons operated in a standard way in accordance with the lege artis technique. However, while slipping the instrument under the cervical vertebra, it compressed the spinal cord. The surgeons removed the instrument as soon as they realised this fact; however they were unable to prevent the damage to the spinal cord. 18
www.nsoud.cz.
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The District Court in Opava granted the plaintiff a lump sum compensation for pain suffered and aggravation of social position in the amount of CZK 1,275,000 (approx. € 45,536). The court of second instance confirmed this judgment and dismissed a further claim for aggravation of social position. Both courts found the medical centre liable for damage to health pursuant to sec. 421a of the Civil Code19 regardless of the fact that the operation was correctly carried out. However, the risk connected to this operation was that the slipping of the instrument under the vertebra could cause harm to the spine, whereas the instruments must be slipped under the vertebra at random, as the situation under the vertebra is not visible.
62
The defendant appealed against the judgment of the second instance, defeating the alleged fulfilment of the conditions for liability under sec. 421a of the Civil Code. The defendant stated that the slipping of the instrument under the vertebra cannot qualify as a circumstance which has its origin in the nature of the globule. In the defendant’s opinion, a difference should be drawn between situations when the wrongful result is caused by circumstances which have their origin in the nature of the thing used (e.g. injection needle) and a situation in which such a result was caused either by the common and correct technique during the usage of the instrument or by an existing situation.
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b) Judgment of the Court
The Supreme Court had no doubt that the legal assessment of the liability of the defendant for damage suffered by the plaintiff shall be governed by sec. 421a of the Civil Code.
64
Sec. 421a of the Civil Code includes provisions of strict liability for damage. It relates to the liability of a person who performs an obligation (rendering health services) at the danger or risk of causing damage, which is based on the nature of the instrument used or other thing. Thus, the liability is given if the damage was caused as the result of the qualified action – the influence of circumstances directly resulting from the nature of the instrument or thing. If the damage arose in causal connection with such circumstance, strict liability must exist. The wrongdoer cannot be released from this case of strict liability.
65
The conditions of strict liability pursuant to sec. 421a of the Civil Code demand a causal link between the circumstances having their origin in the instrument and the wrongful result. The law understands as usage of the thing (instrument) in the given case all actions necessary for the proper operation of the thing, or achieving the purpose pursued through its usage. If the health improvement pursued by the medical centre in the present case shall be attained, i.e. that the wire globule repairs the vertebra, then the “circumstance which has its origin
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19
(1) Any person shall be held liable for damage caused by circumstances which have their origin in the nature of an instrument or another thing which is used for performing an obligation. Nobody can be released from such liability. (2) Liability under paragraph (1) applies also to the rendering of health, social, veterinary and other biological services (Translation: Trade Links).
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in the nature of the instrument or other thing” must be understood as any fact that is established by the generally used technology during the operation.
67
It is therefore of no importance whether the damage to health was caused while slipping the wire globules under the vertebra or due to the inconvenient anatomic conditions of the plaintiff’s spine. The damage to health was evidently caused by the nature of the material of the instrument and therefore by the circumstances which have their origin in the instrument. c) Commentary
68
Czech legislation has acknowledged for a long time the application of the provision of sec. 421a of the Civil Code to medical cases. However, in this case the Supreme Court expressed its opinion on the issue of “circumstances which have their origin in the nature of the instrument or other thing” with respect to lege artis operations.
69
In the present case the damage to health was, according to expert opinion, caused by the pressure of the instrument on the spine. As this pressure has its origin in the thing used (the character of the material is the hardness of the wire globule), the causal link was established.
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However, the Supreme Court also rejected any differentiation between the static action of the instrument and the procedure of using the instrument. The law understands under the use of a thing or instrument all actions necessary for the proper function of the thing or the achievement of the purpose pursued through its use. Therefore, it should be of no importance for this provision whether the medical treatment was lege artis or not. The decisive issue is the factual impact of the instrument. The possible non-lege artis treatment itself would be considered in accordance with sec. 420 of the Civil Code. 3. Nejvyšší soud České republiky, 27 June 2006, 25 Cdo 1354/2005, 25 Cdo 1355/2005: Damage to Health, Causation20 a) Brief Summary of the Facts
71
The plaintiff lost her son in a road accident caused by the defendant. The son of the plaintiff was fatally injured and, as a result of his death, the plaintiff suffered from post-traumatic stress disorder. However, she did not suffer any pecuniary damage – a condition for the application of sec. 420 of the Civil Code. Regarding the damage to health, based on expert opinions, the injuries suffered can be classified as delayed depressive reactions resulting from an event connected also with other life situations.
72
The District Court in Český Krumlov dismissed the plaintiff’s petition for payment of compensation for pain suffered and for further claims, as the pain suffered was not in accordance with Decree No. 440/2001 Coll. and the court considered the petition unreasoned. 20
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The court of second instance confirmed the first judgment. However, it did not agree with the opinion of the District Court on the reason for dismissal. It referred to the decision of the Supreme Court published in the Collection of judicial decisions and opinions under R 7/1997.21 The court deduced that even if the plaintiff’s harm were proved as a reaction to the fatal injury of her son, the causal connection between the wrongful conduct of the defendant and the damage to the plaintiff’s health would be missing. The alleged cause consists in the fact which alone is the result for which the defendant is held liable.
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b) Judgment of the Court
The inevitable precondition of liability for damage, both liability based on fault and strict liability, is the existence of a causal connection (relation between the cause and result) between the legal fact for which the wrongdoer is liable and the damage suffered by the injured party.
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The legal fact which gives rise to the general liability for damage under sec. 420 of the Civil Code is the illegal activity of the wrongdoer. In the present case the defendant caused a road accident, which resulted in the fatal injury of the plaintiff’s son. Therefore he is unequivocally liable for the damage caused.
75
However, the health of the plaintiff was not damaged during this accident. The post-traumatic stress disorder developed as the result of the depressive disorder and shock as a reaction to the detrimental life situation caused by her son’s death. The direct result of the road accident was the fatal injury of the plaintiff’s son and this result of the illegal activity of the defendant became a cause of the damage to the health of the plaintiff. Thus, this injury occurred in causal connection with a fact which alone is the result for which the defendant is held liable. In such a case the legal opinion of the Supreme Court about the issue of the causal link between the illegal activity of the wrongdoer or wrongful event and the establishment of damage shall apply.
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Under this opinion the causal connection between the act of the wrongdoer and the damage arisen cannot be deduced from the fact which alone is the result for which the defendant is held liable based on another legal reason.
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c) Commentary
The mentioned decision of the Supreme Court published in the Collection of Court Decisions and Opinions under R 7/1979 is a source of many legal disputes on the approach to the theories of causality. However, the courts have still applied the questionable conclusions of the Supreme Court and follow its legal opinion. 21
The health of the plaintiff was damaged as a consequence of a reaction to the death of her child. The alleged cause therefore consists in the fact which alone is the result for which the defendant is held liable. […] Therefore, the causality as the legal condition of the liability is missing. As a direct result of the breach of the legal duty of the defendant the death of the plaintiff’s child occurred and not the damage to the plaintiff’s health.
78
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79
It seemed that this approach was changed, or a change has been commenced, by a decision of the Supreme Court dated 24 May 200122 in which it concluded that even in a circumstance where the defendant is responsible for the damage to the plaintiff’s property, this does not exclude the causal connection between the breach of duty resulting in the damage and the damage which the plaintiff incurred in the form of lost profit. The reason for this surprising conclusion was the fact that the Supreme Court examined the chain of causes based on the foreseeability of the damage by the wrongdoer. The chronological point of view for the establishment of damage was not conclusive because harm does not necessarily arise immediately after the wrongdoer’s action.
80
Based on this, criticism must be mentioned with respect to the present decision. The Czech doctrine acknowledges that causality is based on the existence of cause and effect in such a manner that, without the cause, no effect would have occurred. The effect must be in direct connection with the cause. It may be the case that the effect arises as a consequence of another circumstance which was caused by conduct that can be attributed to a wrongdoer assuming that this consequential damage was foreseeable and therefore attributable to the wrongdoer.
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Causality as the inevitable condition of the liability should therefore be concluded also in the case when the relation between the cause and the effect is indirect; however, this effect is the consequence of the cause. 4. Nejvyšší soud České republiky, 15 December 2005, 25 Cdo 1956/2004: Legitimacy to Claim Damages Based on the State Liability Act23 a) Brief Summary of the Facts
82
The sole managing director of the plaintiff, a company, was accused in 1996 of the crime of false accusation pursuant to sec. 174 (1,2) of the Criminal Act (see fn. 12), and in 1997 he was accused of further crimes consisting of false accusation, false statement and false expert opinion. The court of first instance found him guilty for the crime dated 1996; however, the court of second instance reversed this judgment. Then the same court of first instance dismissed the charges for the second accusation based on provisions of sec. 226 lett. a) of the Criminal Act as it was not proved that a criminal offence had ever occurred. Based on this, the plaintiff filed a petition for damages under the former State Liability Act (see fn. 14).
83
The District Court in Prague 2 dismissed the petition for compensation in the amount of CZK 60,000 (approx. € 2,143) consisting in lost profit, as the court had not found the claim justified. It was claimed that the profit was lost as a result of the failure to perform obligations under the agency agreement. The District Court reasoned that, although the plaintiff should be entitled to claim for damages, it had not proved the causal link between the accusation and the failure to perform obligations under the agency agreement. 22 23
Supreme Court, 25 Cdo 1946/2000. Sbírka soudních rozhodnutí a stanovisek (Collection of Court Decisions and Opinions) 2006, 839 ff.
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The court of second instance confirmed the judgment of the first instance. However, the court concluded that since the plaintiff was not a participant in the criminal proceedings against its managing director, it could not assert the claim for compensation pursuant to sec. 2 of the former State Liability Act for damage caused by an illegal decision.
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b) Judgment of the Court
The Supreme Court confirmed the assessment of liability of the state for commencement of criminal proceedings that did not lead to conviction, as liability for the illegal decision. This conclusion is fully in accordance with the constant case law of the Supreme Court and the Constitutional Court.
85
However, sec. 2 of the former State Liability Act determines which persons are entitled to claim against the state compensation for damage caused by an illegal decision, i.e. also by criminal prosecution which did not lead to a final and conclusive sentence. Under this provision participants of the proceedings who were harmed by the illegal decision issued in these proceedings are entitled to compensation for damage.
86
Even though the CPA (see fn. 13) did not use the term participant24 it is obvious enough with respect to the definition of a party in the criminal proceedings as stipulated under sec. 12 (6) of the CPA25 that the participant of the criminal proceedings for the purpose of sec. 2 of the former State Liability Act shall be the person against whom the proceedings were brought (the accused, person charged with a crime and the convicted).
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In the present case such a person was the managing director and not the company. Therefore it is evident that the company as plaintiff was not entitled to sue. Consequently, despite being factually affected by the prosecution and other criminal proceedings, the company cannot become actively entitled to claim compensation, unless it is a participant in the proceedings.
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c) Commentary
The Supreme Court decided again on a very current topic, which is the liability of the state, regardless of the reason for its liability. Even though this judgment relates to the previous legal regulation represented by Act No. 58/1969 Coll., the case law and the interpretation of conditions for state liability are still very topical. The reason is that the current State Liability Act (see fn. 4) regulates in sec. 7 the legitimacy of persons to claim compensation for damage based on an illegal decision in a very similar way as the previous one. 24
25
The CPA uses only the term “person participating in the proceedings” – osoba zúčastněná na řízení. A “party” shall be understood as a person against whom the criminal proceedings are maintained, a person participating and the injured party and, in proceedings before the court, also the state prosecutor; another person based on whose petition or request the proceedings are maintained or a party who filed for a remedy shall also have the same position as “party”. (Translation: Trade Links)
89
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90
In the given case the Supreme Court clarified who is actively entitled to claim damages if a statutory body of a company, e.g. a managing director, is accused or charged with a crime and later discharged from these proceedings. It concluded expressly that, in the case of the liability of the state for an illegal decision, the participants of the proceedings who were harmed by the illegal decision issued in these proceedings are the only ones entitled to damages. No other party can claim damages based on that reason.
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For criminal proceedings that do not use the term “participant”, any person who corresponds with the definition of “party” in criminal proceedings, namely the person against whom the proceedings were maintained (the accused, person charged with a crime and the convicted), a person participating in the proceedings pursuant to sec. 42 of the CPA and the injured pursuant to sec. 43 of the CPA must all be considered for the purpose of sec. 2 of the former State Liability Act. 5. Nejvyšší soud České republiky, 22 June 2006, 30 Cdo 2914/2005: Protection of Personality Rights, Treatment with Genetic Material by a Medical Centre26 a) Brief Summary of the Facts
92
The first plaintiff suffered from cancer, and chemotherapy was recommended as part of the medical treatment for him. However the treatment results in the sterility of the patient and the plaintiffs, who are a couple with a child and who wished to have another child, decided to freeze the sperm of the first plaintiff in order to perform artificial insemination in the future. The sperm was taken from the first plaintiff in the specialised unit of the defendant in January 2000, divided into four samples and frozen at an extremely low temperature. In April 2003 one sample was handed over to the plaintiffs in order to enable the second plaintiff to be inseminated in a specialised medical centre. However, it was discovered that this sample was useless.
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The plaintiffs took all the samples (one sample was already destroyed) and used them for the insemination, even though these samples were less valuable for that purpose. Attempts to perform the insemination ultimately failed.
94
The plaintiffs considered the wrongful storage of the samples an unjustified interference with their personal rights. They argued that due to the sterility of the first plaintiff after the chemotherapy, the approach of the defendant obstructed the hope of having another child. This fact should, in their opinion, represent an unauthorised interference with their right to privacy and family life.
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The court of first instance dismissed their petition for the protection of personality rights. It concluded that, despite the wrongful storage of the samples by the defendant, this cannot be considered as an unauthorised interference with the rights to privacy and family life if nothing happened: the state of the fam26
Právní rozhledy 2006, 719 ff.
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ily for both plaintiffs is the same as before the sperm was frozen. Moreover, the entire interference must be considered only as a hypothesis. The court of second instance confirmed the first judgment. This court, in addition to the first opinion, argued that personality rights are based on the integrity of the personality of an individual. Therefore, anything that was separated from the individual, despite consent being given, no longer represents the integrity of the individual and cannot become subject to interference with personality rights. b) Judgment of the Court
The plaintiffs posed a legal question in their appeal on whether the medical centre’s treatment of the genetic material, which had been separated from the body in order to enable artificial insemination, is objectively able to harm the personality and consequently unjustifiably interfere with the personality rights of couples to privacy and family life in accordance with sec. 13 of the Civil Code.
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Sec. 13 of the Civil Code27 sets forth a civil sanction for the unauthorised interference with the personality rights of the individual, which is protected under the general personality rights. The basic substantial condition for the establishment of liability pursuant to sec. 13 of the Civil Code is that such interference is able to cause a non-pecuniary injury. This injury can consist either in a breach or only in an endangering of the personality rights of an individual in his physical or moral integrity. The indicating list of typical personality rights is introduced in sec. 11 of the Civil Code.28
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Within the general right to the protection of the personality exist the partial personality rights ensuring the civil protection of particular values as integral parts of the comprehensive physical and psychological integrity. These partial rights are listed in sec. 11 of the Civil Code, e.g. the right to the protection of life, health and body and the further right to privacy and family life.
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The sense of the general personality rights as well as the particular partial personality rights is to ensure the efficient protection of the individual in the most comprehensive way. Despite lacking comprehensive regulation of artificial insemination, it would contradict the mentioned meaning of the protection of the personality to refuse protection from the unauthorised treatment of genetic material, even if undertaken by a specialised medical centre, as in the present case.
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27
28
(1) An individual shall be entitled in particular to demand desistance of the unlawful interference with his right to protection of the personality, removal of consequences of such interference and provision of appropriate satisfaction. (2) If the satisfaction under paragraph 1 appears insufficient, especially due to the fact that the individual’s dignity or honour has been considerably reduced, the individual shall also have the right to a pecuniary satisfaction for the nonpecuniary damage. (3) The amount of the satisfaction under paragraph 2 shall be specified by the court with regard to the intensity and circumstances under which the infringement occurred. (Translation: Trade Links) An individual shall have the right to the protection of his personality, in particular of his life and health, civic honour and human dignity as well as of his privacy, name and expressions of personal nature. (Translation: Trade Links)
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100
Under sec. 11 ff. of the Civil Code, the human body makes up an integral part of the personality as a legal subject. In accordance with this generally acknowledged understanding, the human body, its parts, products as well as genetic material, despite being separated from the human body, does not represent a thing, in the legal sense. If the genetic material was separated during a medical procedure with the consent of the donor for the purpose of artificial insemination, it can be kept and used only in accordance with this purpose. This conclusion can be deduced from Art. 22 of the Convention on Human Rights and Biomedicine,29 sec. 26 (4) of the Health Care Act30 and sec. 12 of the Act. No. 285/2002 Coll., Transplantation Act.31 Assisted reproduction represents a preventive intervention into the reproductive ability of an individual, which is acknowledged both by medicine and law.
101
Therefore, should the genetic material for the assisted reproduction be damaged or destroyed during the treatment by the medical centre, this represents an interference with the reproduction abilities of the donor which are, without any doubt, a part of his physical integrity. When the interference was caused by non-lege artis conduct, it is objectively able to interfere with the personality rights of the plaintiffs to privacy and family life pursuant to sec. 13 of the Civil Code. c) Commentary
102
The Supreme Court had to answer the very current legal issue of whether a non-lege artis treatment with genetic material, which was separated in order to enable artificial insemination, is objectively able to unjustifiably interfere with the personality rights of couples to privacy and family life in accordance with sec. 13 of the Civil Code.
103
Even though the separation and storage of the sperm for the purpose of artificial insemination is subject to some laws valid in the Czech Republic, especially the Health Care Act as well as the Family Act32 with regard to the child born, the Supreme Court did not deal with the issue of whether a non-lege artis treatment of such sperm is able to breach the rights of the personality of the individual.
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Despite the arguments of the general courts that anything that has been separated from the individual with his consent no longer represents the integrity of the individual and cannot become subject to interference with personality rights, the Supreme Court was of a different opinion.
29
30 31
32
Sdělení MZV č. 96/2001 Sb.m.s., o přijetí Úmluvy na ochranu lidských práv a důstojnosti lidské bytosti v souvislosti s aplikací biologie a medicíny: Úmluva o lidských právech a biomedicíně. Zákon č. 20/1966 Sb., o péči o zdraví lidu. Zákon č. 285/2005 Sb., o darování, odběrech a transplantacích tkání a orgánů a o změně některých zákonů (transplantační zákon). Zákon č. 94/1963 Sb., o rodině.
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It concluded that under the general provision of the Civil Code concerning the protection of personality rights, the human body makes up an integral part of one’s personality as a legal subject. Therefore, the genetic material, despite being separated from the body, does not represent a thing in the legal sense and damage to genetic material for assisted reproduction can represent an interference with the reproduction abilities of the donor which are, without any doubt, a part of his physical integrity.
105
This conclusion is correct, as the list of protected rights of an individual in sec. 11 of the Civil Code is only indicative and consists of rights that protect both the rights to bodily integrity and private life. Any other interpretation of that provision would lead to the obstruction of the proper protection of personality rights.
106
Under constant case law both the general courts and the Constitutional Court acknowledged such an interpretation of sec. 11 of the Civil Code, which states that a breach of the right to life could interfere with the private sphere of another person. The Czech Constitutional Court considered this issue e.g. in decision II US 517/99 concerning sec. 8 of the Convention (see fn. 6) when it alleged that the family relationship creates a part of a person’s private life and this relation consists not only of moral or social relations, but also of the material interests of a person. Therefore, any non-lege artis treatment which objectively led to the inability to have another child by artificial reproduction must be considered as an interference with personality rights.33
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C. LITERATURE 1. P. Vojtek, Přehled judikatury ve věcech náhrady škody (2006)34 In this book, Vojtek presents in approximately 700 pages all relevant case law concerning compensation for damage based on provisions of the Civil Code and Commercial Code. The importance of the book consists especially in the systematic collection of the existing case law relating to liability in private law and in taking into account the latest decisions in the judicature of the Supreme Court.
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2. M. Králík, Civilněprávní odpovědnost sportovců za sportovní úrazy ve světle evropské a světové judikatury 20. a 21. století, Právní rozhledy 2006, 285 ff.35 The author introduces some basic approaches of the case law concerning the liability of sportsmen for harm and injuries caused during a sport activity. He 33
34 35
J. Švestka in: O. Jehlička/J. Švestka/M. Škárová, Civil Code – Commentary (8th ed. 2003) 70. Overview of Case Law in Matters of Compensation for Damage. Civil Liability of Sportsmen for Sport Injuries in Accordance with European and World Case Law of the 20th and 21st Century.
109
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mentions the opinions and most important decisions in the following countries: Germany, Austria, England, France and very briefly Australia, Poland and Canada. The most extensive part of the article provides a summary of the Czech case law.
110
The author concludes that the Czech case law requires a serious breach of a sport rule for the liability of sportsmen, which is then considered as a breach of sec. 415 of the Civil Code. This provision sets forth a legal duty to behave in such a way that no damage to health, property or nature occur, and it is understood as a general rule for required behaviour of any legal subject. However, the Czech case law has not dealt with a minor breach of these rules yet, which might be difficult to automatically qualify as a breach of sec. 415 of the Civil Code.
111
The author also published further articles in Czech legal journals – Soudní rozhledy36, Právní rozhledy37 and Jurisprudence38 with the same topic and very similar content. 3. T. Doležal, Náhrada škody za nechtěné dítě? Právní rozhledy 2006, 783 ff.39
112
The author presents the issue of wrongful birth and wrongful life and the basic decisions of courts in the USA, Great Britain, Australia, Germany and Austria and he summarises three basic approaches in the case law. However, the author neither deals with nor tries to find a reasonable conclusion for this topic under the Czech law. 4. M. Petr, Odpovědnost v souvislosti s porušením komunitárního práva, Právní rozhledy 2006, 810 ff.40
113
The author presents in a comprehensive manner all three elements of liability under the European law: the liability of the European Community, liability of the Member State and liability of an individual. He clearly states the conditions for the particular liability, its historical development as well as summarises the way to assert a claim for compensation. On this occasion the author criticises the current State Liability Act, which does not present a sufficient source for the liability of the state based on a breach of European law.
36
37
38
39 40
Trestněprávní odpovědnost sportovců za sportovní úrazy ve světle evropské a světové judikatury 20. a 21. století (Criminal Liability of Sportsmen for Sport Injuries in accordance with European and World Case Law of the 20th and 21st Century), Soudní rozhledy 2006, 365 ff. Několik poznámek k právní odpovědnosti sportovců za sportovní úrazy (A Few Remarks on the Legal Liability of Sportsmen for Sport Injuries), Právní rozhledy 2006, 539 ff. Právní odpovědnosti sportovců za sportovní úrazy (Legal Liability of Sportsmen for Sport Injuries), Jurisprudence 5/2006, 29 ff., and 6/2006, 24 ff. Damages for an Unwanted Child? Liability in Connection with the Breach of Community Law.
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5. Konference věnovaná kodifikaci soukromého práva, Právní forum 2006, Annex to 3/2006, 4/200641 These Annexes include a collection of speeches delivered at the international conference at Charles University in Prague, Faculty of Law, which took place in Prague on 17 and 18 June 2005. The conference dealt with the preparation of the new Czech Civil Code, in particular with the basic concepts and terms of the new Code and the recent developments in the civil law, the coherence between civil and commercial law as well as with some issues concerning the conflict of laws.42
41 42
Conference on the codification of private law – Contributions. The speeches of the following contributors were published: K. Eliáš, Theoretical and practical issues of re-codification of Czech civil law; K. Schmidt, Structure of contractual law in civil codifications; S. Plíva, Commercial Agreements; J. Pokorná, Information about concern structure; B. Dauner-Lieb, European unification of law of obligations and national legal order; D. Coester-Waltjen, Transposition of the regulation Brussels I and II into national procedure law; M. Pauknerová, European international civil procedure law (Brussels I, Brussels IIa); J. Basedow, State of Origin Principle and the international conflict of laws on the European internal market of services; K.J. Hopt, Development of the holding law of joint stock companies in the European Union.
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IV. Denmark Vibe Ulfbeck and Søren Bergenser
A. LEGISLATION 1. Lov om ændring af lov om produktansvar, Lov nr. 542 af 8. juni 2006 (Act Amending the Product Liability Act, Act no. 541, 8 June 2006)
1
The Danish Product Liability Act of 1989 is an implementation of the EU Product Liability Directive of 1985 (85/374) with later amendments.
2
Until June 2006 the Danish Product Liability Act sec. 10 stated that the intermediary seller was vicariously liable towards the injured party with a recourse claim against the producer.
3
However, with its decision in C-402/03 of 10 January 2006, the European Court of Justice ruled that the Danish rule was not in accordance with the Directive since the Directive only imposes liability on the producer.
4
Consequently, the Danish Product Liability Act was changed with Act no. 451 of 8 June 2006. According to the new sec. 10 in the Act, the intermediary seller is now liable according to the ordinary rules under the law of negligence but with a reversed burden of proof.1 In addition, the intermediary seller is vicariously liable according to a new sec. 10a but only if the producer has acted negligently.
1
It is not quite clear whether this rule may in fact also be an infringement of the Directive.
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B. CASES 1. Højesteret (Danish Supreme Court) 8 February 2006, U (Ugeskrift for Retsvæsen, Weekly Law Report) 2006.1430 H (Højesteret, Supreme Court): State not Liable for Theft from the Public Motor Vehicle Inspection Authority a) Brief Summary of the Facts
After an accident A’s motorcycle was damaged. It was brought to the Public Motor Vehicle Inspection Authority on a Friday afternoon and left there for further inspection. The motorcycle, weighing about 300 kilos, could not easily be moved as the front wheel could not be turned. The entire area was surrounded with barbed wire and heavy iron doors and locks. In addition, the buildings in the area, including the building in which damaged vehicles were stored, were partly covered by an alarm system. However, the motorcycle was kept in a part of the building which was not covered by the alarm system. Over the weekend the motorcycle was stolen. The thieves had entered the area by cutting the wire and by breaking a plexiglas window in the building in which the motorcycle was stored. The owner of the motorcycle sued the Public Motor Vehicle Inspection Authority (the Ministry of Transport and Energy) claiming damages.
5
b) Judgment of the Court
All the judges in the Supreme Court agreed that the case must be decided according to the ordinary rules regulating the liability of someone who keeps something in custody for somebody else, i.e. the fault rule with a reversed burden of proof.
6
The majority of the judges (3) of the Supreme Court found that the motorcycle had been kept with due care as the area had been surrounded with wire and the buildings had been partly covered by the alarm system. A minority of the judges (2) found that the Public Motor Vehicle Inspection Authority had not proven that it had done what could reasonably be required to prevent thefts. To the minority it was decisive that the motorcycle had been kept in an area not covered by the alarm system. In consequence of the view of the majority, the defendant was acquitted.
7
c) Commentary
This case confirms that the general rule on liability in cases where someone takes something into custody for others is the fault rule with a reversed burden of proof. However, the decision of the majority does not seem to be based on a clear application of this rule. Most likely, the majority of judges found that an application of the rule was not necessary in order to reach a result since it was clear to them that the defendant had not acted negligently.
8
The case also shows that, in areas of the law where public bodies carry out the same acts as are sometimes carried out by private individuals, in principle the same liability rules apply to the public body as to the private individual. In the
9
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above case, however, it does not seem entirely clear that the result of the majority would have been the same had the defendant been a professional private firm carrying out motor vehicle investigation.2 2. Højesteret, 30 January 2006, U 2006.1290 H: Liability of Mobile Phone Company for the Placement of a Telemast a) Brief Summary of the Facts
10
A mobile phone company (A) erected a 48m tall telemast only 2.5m from B’s private property and 23.5m from his house. The property was on the outskirts of a small village. The municipality had granted a building permit by giving a dispensation from the formal requirements concerning the height of building projects. B claimed compensation alleging that his property had suffered a decrease in value due to the erection of the telemast. Three expert opinions confirmed the decrease in value of the property. b) Judgment of the Court
11
A majority of the judges (3) of the Supreme Court affirmed the decision of the Court of Appeal granting the claimant compensation. Thus, the majority of the judges were satisfied that the value of the property had in fact decreased and that the inconvenience caused to B exceeded the limit for what B as a citizen reasonably had to tolerate seen in the light of the ordinary developments of society. A minority of the judges (2) found that the telemast did not result in an unacceptable level of inconvenience for B. As a consequence of the view held by the majority of the judges, B was granted compensation. c) Commentary
12
The case concerns a conflict among neighbours. The fact that liability is imposed on A regardless of the fact that the municipality had approved of the erection of the telemast merits attention. Thus, liability seems to be strict. The question is what the scope of the rule is. Although the case concerns the erection of a telemast it seems unlikely that the established rule should be confined to this type of case. It must be assumed that the case establishes a general rule of strict liability in conflicts in which the inconvenience caused has a more lasting character.3 3. Højesteret, 8 December 2005, U 2006.805 H: Municipality not Liable for Expenses Incurred by House Owners due to Expropriation Plans a) Brief Summary of the Facts
13
In this case a company (A), which owned a building, initiated a renovation of the building. In August 2001, the municipality (B) informed A that the municipality 2
3
The question has practical relevance since in Denmark the Public Motor Vehicle Inspection Authority has been privatized recently. For other cases concerning neighbourhood conflicts, see U 1994.117 V, U 1999.353 H, U 1999.598 H, U 2001.929 V. As to more recent literature see Lene Pagter Kristensen, U 2000B.403.
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was considering carrying out an expropriation of A’s property. In September, A was informed that it had now been decided to carry out the expropriation. A drew attention to the fact that stopping the renovation would cause a considerable loss and asked to be informed whether the municipality wished A to stop the work or to proceed. B answered by sending A a letter in September confirming that B wished to carry out the expropriation. Consequently, A stopped the work. In November A was informed that the decision to expropriate had been altered. A claimed damages from B for the loss suffered by the company by first having stopped the renovation work and later having resumed it. b) Judgment of the Court
The Supreme Court noted that B had followed the formal rules in relation to expropriation. The information on the decision to expropriate had not compelled A to stop the work and the letter from B in September could not be understood as an acceptance on the part of B to compensate A for losses incurred by stopping the work. Furthermore the court noted that compensation in the case of expropriation would normally comprise the value of improvements of the property when the decision to make the improvements had been taken prior to the decision to expropriate. Finally, the court noted that there were no extraordinary circumstances in the case that could justify the imposition of liability as a risk-based liability. On these grounds B was acquitted.
14
c) Commentary
The case illustrates the complicated liability questions that can arise in relation to the liability of public bodies. Often these cases have elements of both contract law and tort law. The case is an example of such a case. Thus, it was necessary for the court to decide whether the letter sent in September could constitute a promise on the behalf of B to compensate A. As this was not the case it was at the same time necessary to consider whether B could be held liable according to tort law. It is not quite clear how this aspect is dealt with by the court. Strict liability on the basis of risk considerations is rejected by the court as there are no extraordinary circumstances in the case. In the end, however, what seems to have been decisive to the court is the fact that A could have avoided the loss by continuing the work relying on its right to compensation in the event of expropriation. The court did not seem to consider whether it could be regarded as negligence on the part of B that it did not advise A on the rules to this effect.
15
4. Højesteret, 19 June 2006, U 2006.2605 H: Air Carrier not Fully Liable for Lost Goods a) Brief Summary of the Facts
A Danish bank (A), sent four bags of bank notes from Copenhagen Airport to Helsinki Airport, Finland with the air carrier (B). The bags containing the bank notes bore tags with names of different banks and from the consignment notes it appeared that it was a valuable delivery. B’s local service agent in Helsinki, C, was asked to make a “security handling” as the consignment contained bank
16
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Vibe Ulfbeck and Søren Bergenser
notes. However, C forgot to make sure that the security firm (D) would be present at Helsinki Airport. In connection with the discharge of the consignment, one of the bags containing the bank notes disappeared. A’s insurance company (E), who had paid € 70,000, sued B claiming damages b) Judgment of the Court
17
The Supreme Court found that sec. 113 of the former Danish Aviation Act was relevant. According to this rule, the limitations of the rule limiting the liability of the air carrier in sec. 111 does not apply if “it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with the knowledge that damage would probably result”. The question before the court was whether this provision was applicable. The Supreme Court found that the provision was to be interpreted so as to imply a requirement that the carrier had acted grossly negligently with the knowledge that its act would imply a considerable risk of causing damage. The question was whether the handling of the goods in the Finnish airport satisfied these conditions. The majority of the judges (3) rejected this on the grounds that there was insufficient evidence to the effect that the employees of the carrier had been aware that the packages contained valuable goods. A minority of the judges (2) disagreed and found that, under the circumstances, it was up to the carrier to prove that the employees had been unaware of the content of the packages. In consequence of the view of the majority, the carrier was acquitted. c) Commentary
18
The case concerns one of the borderline areas between contract and tort. It is interesting because the Supreme Court explicitly states how sec. 113 in the former Danish Aviation Act should be interpreted. Sec. 113 is based on the Warsaw Convention4 art. 22, sec. 5 and the interpretation given by the Danish Supreme Court seems to be in line with the understanding of the rule on an international level. Although the Danish Aviation Act has now been amended in consequence of the entering into force of the Montreal Convention5, the provision in sec. 113 in the former Aviation Act is still relevant since it is now incorporated into an “attachment” to the Aviation Act.6 The attachment governs the relations with countries that have not ratified the Montreal Convention. 5. Vestre Landsret (Court of Appeal), 3 July 2006, U 2006.2900 V (Vest, West): Railway Company Liable for Injury Caused to Car Driver a) Brief Summary of the Facts
19
In this case a car driver was injured by a train. The rails were laid down in the road and the car was driving on an intersecting road. Before he noticed the 4
5 6
The Warsaw Convention 1929, as amended by the Hague Protocol of 1955 and by the Montreal Protocol of 1975. The Montreal Convention 1999. Act no. 1484 of 19 December 2005 with later amendments.
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train, the driver (A) tried to overtake some cars in front of him. He then became aware of the train and tried to avoid a collision. He thereby hit a lamppost and subsequently was hit by the train. The car was damaged and A suffered personal injury. A sued the railway firm claiming damages for his personal injury. b) Judgment of the Court
The Court of Appeal found that the railway company was liable according to § 15 in the Railway Act7 imposing strict liability on the railway company in case of personal injury caused to persons not travelling by train. The court also considered whether the claim could be reduced due to contributory negligence on the part of A. The court found that A had acted negligently but not grossly negligently in the sense of the words in § 14 in the Railway Act. Consequently, A was fully compensated for his loss.
20
c) Commentary
The Railway Act sec. 15 imposes strict liability on the railway company for personal injury caused to persons not travelling by train. As in all other regulations in Danish law where the tortfeasor is strictly liable, the regulation of contributory negligence for the injured party suffering personal injury demands a high level of negligence if the claim of an injured party is to be reduced.
21
The Railway Act sec. 14 is an example of such a rule8 and the case is just one of many examples in Danish law that shows that a person who suffers personal injury can act with a high degree of negligence and still avoid having his compensation reduced when the tortfeasor is subject to strict liability.
22
C. LITERATURE 1. Martin Haug, Produktansvar, Erhvervsbladets Bøger (Copenhagen 2006) This book, “Product Liability”, is a handbook for practitioners. It contains an overview of the Danish Product Liability Act which in 2006 underwent changes following the decision C-402/2003 of the European Court of Justice.
23
2. Vibe Ulfbeck, Offentlige myndigheders erstatningsansvar, in: Carsten Henrichsen m.fl. (red.), Forvaltningsretlige perspektiver (2006) 271 ff. In this article (“The Liability of Public Authorities”), the author deals with different aspects of the liability of public entities. The liability of public bodies is compared with the liability of private individuals, including the professional 7
8
Act. no. 1171 of 2 December 2004 with later amendments (Bekendtgørelse af lov om jernbane). An equivalent example is found in the Danish Traffic Act § 101.
24
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Vibe Ulfbeck and Søren Bergenser
liability of private entities. It is concluded that under Danish law the liability of public bodies is sometimes milder and sometimes just as strict as the liability of private individuals. There is no clear line in case law. 3. Lars Bo Langsted et al., Erstatning – en antologi (Aalborg 2006)
25
As the title “Liability – an Anthology” suggests, this book contains articles on different themes/tendencies in modern Danish liability law. Many of the articles in the book deal with aspects of professional liability, for instance professional liability concerning public social work and professional liability concerning tax consultancy. 4. Jens Rostock-Jensen, Mellemhandlerens hæftelse for produktskade (Product Liability of the Intermediate Seller), Ugeskrift for Retsvæsen, sektion B, (Weekly Law Report, sec. B) 211 U 2006 B.211
26
The decision C-402/2003 of 10 January 2006 of the European Court of Justice received substantial attention in Danish liability law in 2006. This article gives a full overview of the background to the former rule concerning product liability of the intermediate seller in the Danish Product Liability Act, the background for the decision of the ECJ and the consequences of the amendments in the Danish Product Liability Act. 5. Christian Mogensen, Fradrag i erstatning for fordele, som en restejendom opnår ved et ekspropriationsanlæg. (Reduction of Compensation Due to Advantages of an Expropriation), U 2006 B.133 Ugeskrift for Retsvæsen, sektion B, (Weekly Law Report, sec. B) 133 U 2006 B.133
27
The article concludes on the leading decision in Danish law concerning the question whether compensation paid in connection with an expropriation order should be reduced if the expropriation generates advantages for the residuary property. It is concluded that, contrary to the view of the authorities, case law only justifies reductions due to special advantages and not for general advantages.
V. England and Wales Ken Oliphant
A. LEGISLATION 1. Compensation Act 2006 This Act, which received the Royal Assent on 25 July, was intended to address the perceived problem of “compensation culture” by reiterating the common law rule by which the courts may take into account the deterrent effect of potential liability in applying the standard of reasonable care to socially desirable activities (sec. 1),1 and by creating a legislative framework for the regulation of claims management services (secs. 4–15). These provisions, at Bill stage, were considered in detail in last year’s Yearbook.2 However, very late in the Bill’s passage through Parliament,3 a new clause was added as a direct response to the decision of the House of Lords in Barker v Corus (UK) plc,4 handed down on 3 May 2006. The decision established a principle of proportionate damages applying to the liability for material contribution to risk recognised by the House of Lords in Fairchild v Glenhaven Funeral Services Ltd.5 Both cases concerned deaths from mesothelioma consequent on exposure to asbestos in the workplace. Barker produced an immediate hostile response from the unions, and, little more than a month later, the then Prime Minister (Tony Blair) was reported as saying that he hoped to change the law to reverse the effect of the Law Lords’ decision.6 The result was what became sec. 3 of the Compensation Act 2006.
1
Sec. 3 makes an employer, or any other “responsible person”, jointly and severally liable for the whole of the damage caused to the mesothelioma victim –
2
1
2 3 4
5 6
See further K. Williams, Politics, the Media and Refining the Notion of Fault: Section 1 of the Compensation Act 2006, [2006] Journal of Personal Injury Law (JPIL) 347. H. Koziol/B.C. Steininger (eds.), European Tort Law 2005 (2006) 221 ff. See Hansard House of Commons, vol. 449 col. 39 (17 July 2006). [2006] United Kingdom House of Lords (UKHL) 20; [2006] 2 Appeal Cases (AC) 572. See no. 20 ff. below. [2002] UKHL 22; [2003] 1 AC 32. BBC News Online, Blair “to change” asbestos ruling, 13 June 2006
.
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and not just for a proportionate share – provided four conditions are satisfied:7 (a) the responsible person has negligently or in breach of statutory duty caused or permitted the victim to be exposed to asbestos; (b) the victim has contracted mesothelioma as a result of exposure to asbestos; (c) because of the nature of mesothelioma and the state of medical science, it is not possible to determine with certainty whether it was the exposure mentioned in (a) above or another exposure which caused the victim to become ill; and (d) the responsible person is tortiously liable in respect of that exposure in connection with damage caused to the victim by the disease. A deduction for contributory negligence is, however, possible.8 Responsible persons may claim contribution from other responsible persons and, if it appears that other responsible persons are insolvent, the solvent defendant may claim from the compensation scheme (established under the Financial Services and Markets Act 2000) which guarantees payments in the event of an insurer’s insolvency.9
3
Sec. 3’s application is limited to the precise medical condition that was considered by the House of Lords in Fairchild and Barker, namely, mesothelioma. It has no application in other circumstances where the “material contribution to risk” analysis might apply, for example, on the facts of McGhee v National Coal Board,10 an application of Fairchild “avant la lettre”,11 where the victim suffered dermatitis from exposure to brick dust. So the proportionate damages approach adopted by the Law Lords in Barker is still good law – in any situation other than that with which their Lordships were actually concerned. 2. NHS Redress Act 200612
4
The main provisions of the Act were considered, at Bill stage, in last year’s Yearbook.13 The Act provides for the creation of a scheme for the provision of redress to resolve claims against the National Health Service (NHS) without recourse to civil proceedings. “Redress” expressly goes beyond financial compensation and should ordinarily include the giving of an explanation, an apology and a report on action taken or to be taken to prevent similar cases arising in future.14 It is expressly provided that compensation may take the form of entry into a contract to provide care or treatment, instead of or in addition to financial compensation.15 An (unstated) hope seems to be that, if the aggrieved party is offered a special NHS care package equivalent to what is available in the private health sector, it is less likely that he will opt for private care and seek to recover the costs in ordinary civil proceedings. It is not clear what will be the impact on ordinary NHS care. It is anticipated the scheme will apply to 7 8 9
10 11 12 13 14 15
Compensation Act 2006, sec. 3(1). Sec. 3(3)(b). Sec. 3(7) and Compensation Act 2006 (Contribution for Mesothelioma Claims) Regulations 2006, Statutory Instrument 2006/3259. [1973] 1 Weekly Law Reports (WLR) 1. Barker v Corus (UK) plc [2006] 2 AC 572 at [13] per Lord Hoffmann. Noted by R. Furniss/S. Ormond-Walshe, (2007) 334 British Medical Journal 400. Koziol/Steininger (fn. 2) 224. Sec. 3(2). Sec. 3(3)(a).
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low-value claims of clinical negligence (up to £20,000) and that detailed regulations will be brought forward in 2007, with a view to its launch in 2008. 3. Companies Act 2006 As part of the general reform and consolidation of company law in the United Kingdom, the Act gives effect to a recommendation in a Department of Trade and Industry (DTI) White Paper of 2005,16 allowing agreed limitations of auditors’ liability to the audited company (sec. 534 ff.). Auditors’ liability has been the subject of official consideration on numerous occasions in recent years,17 and over time a number of possible reforms – e.g. proportional liability and liability caps – have been considered and rejected. Allowing agreed limitations of liability was proposed as long ago as 1989,18 but only in its most recent White Paper did the Government announce that it was persuaded of the benefits of change. Although provisions purporting to exempt an auditor of a company from liability, to any extent, are generally void (sec. 532), an exception is now to be made in respect of “liability limitation agreements” which are authorised by the members of the company and comply with various requirements provided for by sec. 535, for example, that the agreement must apply to a specified financial year, and must not apply to more than one financial year. However, it is immaterial whether the limitation of liability is expressed in terms of a sum of money or a formula or otherwise (sec. 535(4)).
5
B. CASES 1. Rothwell v Chemical & Insulating Co Ltd [2006] England and Wales Court of Appeal (Civil Division) (EWCA Civ) 27, [2006] 4 All England Law Reports (All ER) 1161:19 Negligence; Damage; NonMaterial Harm a) Brief Summary of the Facts
This was an appeal arising out of a set of test cases in which the claimants sued in respect of the development in their bodies of pleural plaques (fibrous tissues on the membrane of the lung) as a result of their exposure to asbestos in the course of employment. Pleural plaques are evidence of exposure to asbestos but are not harmful in themselves; nor do they lead to other asbestos-induced conditions. They are, however, an indicator of a heightened risk of suffering a malignant asbestos-related disease (e.g. mesothelioma) in the future. The 16 17
18 19
DTI, Company Law Reform (2005). See A. Likierman (chairman), Professional Liability: Report of the Study Teams (1989); Law Commission/DTI, Feasibility Investigation of Joint and Several Liability (1996); DTI, Company Law Review (2001); DTI, Company Law – Director and Auditor Liability: A Consultative Document (2003). Likierman (fn. 17). Also reported under the name Grieves v FT Everard & Sons Ltd. Noted by S. Green (2006) 122 Law Quarterly Review (LQR) 386 and J. Morgan, [2006] Cambridge Law Journal (CLJ) 269. See further D. de Saulles, Nought plus Nought plus Nought Equals Nought: Rhetoric and the Asbestos Wars, [2006] JPIL 301.
6
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claimants argued that the increased risk of future disease associated with the pleural plaques, and their consequent anxiety, made the development of the pleural plaques an injury that was sufficiently serious to found a cause of action in the tort of negligence. In one of the test cases, the additional issue arose whether the claimant’s depressive illness, consequent on his worrying about the consequences of his exposure to asbestos, constituted sufficient damage to found a claim in negligence. b) Judgment of the Court
7
By a majority of 2–1, the Court of Appeal found in favour of the defendant employers on each of the main issues relevant to the appeal. First, the development of the pleural plaques did not in itself constitute personal injury such as to satisfy the damage requirement of the tort of negligence. Damage did not have to be substantial, but it had to be more than minimal.20 The pleural plaques of which the claimants complained were insufficiently significant: they were symptomless, had no adverse effect on any bodily function, and being internal had no effect on appearance.21 Secondly, neither the risk of future disease nor anxiety that such disease might result were sufficient on their own to found a cause of action as neither was consequent on any physical injury. Thirdly, the development of the pleural plaques did not become a sufficiently significant injury when aggregated with the risk of future disease and the claimants’ associated anxiety. Three heads of claim which could not found a cause of action individually did not become actionable damage simply because they were combined. Such a result would be contrary to public policy as (for example) the costs of litigation were likely to be disproportionate to the damages recoverable. It would be unjust if the right to recover damages were to depend on the fortuity of whether or not a particular claimant had developed pleural plaques.22
8
Lastly, a claimant who suffered a depressive illness as a result of his fear of contracting an asbestos-related disease could not recover damages for psychiatric injury where a person of reasonable fortitude would not have reacted in such a way. English law has never applied a simple test of foreseeability as determinative of the circumstances in which liability may arise for negligentlycaused psychiatric harm. As acknowledged by the House of Lords in Page v Smith,23 one of the circumstances in which such liability may arise is where the claimant is the “primary victim” of the defendant’s negligence in the sense of being at risk of foreseeable injury through physical impact. But this principle could not be extended to cover a case where the defendant negligently exposes the claimant to the risk of contracting a disease and the claimant suffers a freestanding psychiatric condition because of his fear of contracting the disease. On the facts, there was no evidence that would have enabled the Court to find that employees of reasonable fortitude, if exposed to asbestos dust, might suffer psychiatric injury as a consequence of anxiety about their future health. 20 21 22 23
At [19]. At [18]. At [67]. [1966] AC 155.
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c) Commentary
The requirement of “damage” is an under-theorised aspect of the English law of tort.24 Though a number of cases have looked at the requirement in specific contexts,25 this is the first case to focus on what it entails generally in the context of (physical) personal injury. It is notable that the Court treats the mere fact of the claimant’s injury as insufficient to found a cause of action: the injury must also be more than minimal.
9
This analysis will no doubt have some impact on consideration of the damage requirement in other contexts, for example, property damage. An issue of topical interest is whether an unwanted GM presence in the claimant’s agricultural crop should be treated as “damage”, rather than merely a “defect” resulting in pure economic loss.26 The reasoning in the present case suggests, for example, that a loss of organic certification resulting from GM presence in the crop should be regarded as sufficiently significant to warrant the conclusion that it has been damaged, as regard is to be had not just to the physical change in itself but also to the financial consequences that flow from it.
10
The Court’s reasoning on the separate issue of the claimant who suffered a depressive illness as a result of his fear of contracting an asbestos-related disease in the future seems rather more questionable. The general law on employer’s liability makes clear that the employer’s obligation of care must be tailored to the particular employee, and this seems to be recognised in the leading cases on employment-related stress.27 So, to the extent that the Court’s decision here was based on the claimant’s lack of reasonable fortitude, it may be doubted that it is consistent with binding authority. A better, and certainly simpler basis for the result on the facts was that it simply was not reasonably foreseeable from the defendant employer’s perspective that the claimant would suffer a depressive illness because of its breach of duty. That would leave the door open to other “fear for the future” cases where the claimant is able to surmount the foreseeability hurdle on the facts.28
11
24
25
26
27
28
See further D. Nolan, New forms of damage in negligence, (2007) 70 Modern Law Review (MLR) 59. See, e.g., the analysis of whether pregnancy is an injury in McFarlane v Tayside Health Authority [2000] 2 AC 59, as well as numerous cases drawing a distinction between recognised psychiatric illness and mere mental suffering. See, e.g., Department of the Environment, Fisheries, Consultation on proposals for managing the coexistence of GM, conventional and organic crops (2006) . See, especially, Hatton v Sutherland [2002] England and Wales Court of Appeal (Civil Division) (EWCA Civ) 76; [2002] 2 All England Law Reports (All ER) 1at [23] per Hale LJ. For an earlier example, see Re Creutzfeldt-Jakob Disease litigation [1998] 41 Butterworths Medico-Legal Reports 157.
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2. Her Majesty’s Commissioners of Customs and Excise v Barclays Bank plc [2006] UKHL 28, [2007] 1 AC 181, [2006] 4 All ER 256:29 Negligence; Duty of Care; Economic Loss a) Brief Summary of the Facts
12
The claimants were granted freezing orders against two companies who owed large sums of unpaid value added tax and were likely, the claimants believed, to dissipate their assets to defeat judgments likely to be obtained against them. Both companies held accounts with the defendant bank. The claimants served the orders on the defendant, which thereby became liable to proceedings for contempt of court if it knowingly released funds from the accounts in question. However, within 2–3 hours of the service of each order, the defendant permitted the transfer of substantial sums out of the companies’ accounts. Neither company ever paid the tax it owed and, even though the claimants were able to appropriate such monies as were left in the accounts, they sustained substantial losses. In their subsequent action for damages, the question of whether the defendant bank owed them a duty of care was taken as a preliminary issue and determined in the defendant’s favour by Colman J,30 but in favour of the claimants by the Court of Appeal.31 The defendant appealed to the House of Lords. b) Judgment of the House of Lords
13
Unanimously allowing the appeal, the House of Lords ruled that the defendant bank had not voluntarily assumed responsibility to the claimants, because it had no choice whether or not to comply with the order, and that it would be contrary to policy to impose on it a duty of care. In particular, it would be unjust if a party should become exposed to a potentially very large liability just because it was notified of an order which it had no opportunity to resist, especially when the duty, if recognised, would apply equally to a private individual holding the funds in question on a wholly gratuitous basis.32 It was difficult,33 or impossible,34 to view a non-consensual order of court as the source of a common law duty of care. c) Commentary
14
The Law Lords’ opinions contain a good deal of discussion of the general approach to be adopted in determining whether a duty of care arises in respect of pure economic loss, and it is mildly depressing that they have yet to agree what the correct approach is. Although recent years have seen “modest progress”35 29
30 31 32 33 34
35
Noted by D. Capper [2006] CLJ 484 and S. Gee (2006) 122 LQR 535. See further K. Stanton, Professional negligence: duty of care methodology in the twenty-first century, (2006) 22 Professional Negligence (PN) 134 and J. Morgan, The Rise and Fall of the General Duty of Care, (2006) 22 PN 206. [2004] England and Wales High Court (EWHC) 122; [2004] All ER 789. [2004] EWCA Civ 1555; [2005] 3 All ER 852. For Lord Walker, this was the crucial considerable: see [77]. See also [112] per Lord Mance. At [19] per Lord Bingham. At [39] per Lord Hoffmann. Cf. Lord Mance’s view, at [103], that there was no inconsistency between the defendant’s proposed duty to the claimants and their duty to the court. At [71] per Lord Walker.
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in clarifying the duty of care concept, there remains considerable uncertainty in the area of pure economic loss, particularly concerning the relationship between the test of voluntary assumption of responsibility, derived from Hedley Byrne & Co Ltd v Heller & Partners Ltd,36 and the “threefold test” established by Caparo Industries plc v Dickman37 (foreseeability plus proximity plus fairness, justice and reasonableness). Some encouragement may be drawn from those opinions which seek to incorporate assumption of responsibility within the Caparo framework, as establishing the necessary element of proximity,38 rather than as an alternative test which (as in the analysis of Lord Bingham39) is to be considered separately. Having said that, however, a finding that there was no voluntary assumption of responsibility does not preclude a finding of proximity on other grounds.40 However, their Lordships paid very little attention to the alternative grounds on which proximity might be found, and concentrated instead on the third stage of the Caparo approach – fairness, justice and reasonableness (or simply “policy”) – where, quite properly, the non-voluntary nature of the defendant bank’s responsibility was found to count against the recognition of a duty of care. They were expressly indebted to Jane Stapleton’s famous article, “Duty of Care and Economic Loss: A Wider Agenda”,41 calling for the development of an agreed agenda of policy considerations to resolve duty of care issues, though, paradoxically, the focus on policy at the expense of proximity may be seen to have contributed, contrary to Stapleton’s intention, to the increasing segmentation of different pockets of liability, and the undermining of any generalised theory of liability for negligence. Though some commentators have been keen to write off the concept of voluntary assumption of responsibility,42 it still played a considerable role in their Lordships’ analysis, and was even more decisive in a subsequent decision of the Court of Appeal, West Bromwich Albion Football Club Ltd v El-Safty.43 A professional footballer under contract with the claimant club suffered an injury in training, and the club arranged for him to see the defendant, a consultant orthopaedic surgeon. The defendant’s advice was negligent, and the player never recovered sufficiently to resume his professional career. The club brought an action in negligence, but failed at first instance and before the Court of Appeal on the grounds that (1) the defendant had assumed responsibility only to the player, and not to the club, (2) there was no other basis on which proximity 36 37 38 39
40
41 42
43
[1964] AC 465. [1990] 2 AC 605. At [35] per Lord Hoffmann, [73] per Lord Walker, and (arguably) [65]–[66] per Lord Rodger. At [4]. Lord Mance seems also to have viewed the approaches as distinct, even if a finding that responsibility was voluntarily assumed could, in some cases, “effectively subsume all aspects of the threefold approach” (at [93]; see also [85]). Ministry of Housing and Local Government v Sharp [1970] 2 Queen’s Bench (QB) 223 and Spring v Guardian Assurance plc [1995] 2 AC 296 are perhaps the best examples of economic loss cases where the duty of care cannot realistically be derived from the defendant’s voluntary assumption of responsibility. See [52] per Lord Rodger. (1991) 107 LQR 249. See, e.g., Stanton (2006) 22 PN, 138–9; K. Barker, Wielding Occam’s Razor: Pruning Strategies for Economic Loss, (2006) 26 Oxford Journal of Legal Studies (OJLS) 289. [2006] EWCA Civ 1299; [2007] Personal Injuries and Quantum Reports (PIQR) P7.
15
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could be established (Mummery LJ was prepared to assume the contrary), and (3) it would not be fair, just and reasonable to recognise a duty of care. The analysis seems to be consistent with that advanced above, though it is notable that the Barclays Bank case was not mentioned at all, further demonstrating the dominance of the “pockets of case-law” approach. 3. Sutradhar v Natural Environment Research Council [2006] UKHL 33, [2006] 4 All ER 490: Negligence; Duty of Care; Misrepresentation a) Brief Summary of the Facts
16
As part of its overseas aid programme, the British Government commissioned the British Geological Survey (BGS), a department of the defendant council, to test the performance of deep irrigation wells in Bangladesh. The tests could identify the presence of a number of toxins in the water, but not the presence of arsenic which, in accordance with the scientific orthodoxy of the day, the defendant did not consider at the time to be a potential problem. The test results were written up in a report submitted to the British and Bangladeshi Governments. Subsequently, arsenic contamination of drinking water precipitated a major environmental disaster in Bangladesh, with between 35 million and 77 million of the country’s 125 million inhabitants at risk. The claimant developed symptoms associated with arsenical poisoning after he began drinking from a shallow, hand-pumped well in an area in which the BGS had tested. He claimed damages on two bases: breach of the defendant’s positive duty to test for arsenic, and the defendant’s implied misrepresentation in its report that the deep well water was safe to drink. The defendant applied for summary judgment on the basis that it owed the claimant no duty of care. The application was refused at first instance, but the Court of Appeal allowed the defendant’s appeal. The claimant appealed to the House of Lords. b) Judgment of the Court
17
The House of Lords unanimously dismissed the appeal. In their Lordships’ opinion, the appellant’s claim was “hopeless”.44 The defendant had never undertaken to test the well water for potability, and no one had asked it to do so. It had not been involved at all in the provision of shallow drinking water wells. The defendant was therefore under no positive duty to test for arsenic (as the claimant in fact conceded in the Lords). The fact of the BGS’s world-renowned expertise, in comparison with the impoverished state of equivalent bodies in Bangladesh, gave rise to no obligation to apply that expertise for the benefit of the Bangladeshi Government or people.
18
There was similarly no duty on the defendant not to publish a report which, although containing useful information about many other matters, implied by what it did not say that arsenic contamination of drinking water was not a danger. It was not enough that it was foreseeable, in the absence of care, that someone might suffer physical injury. There had also to be proximity “in 44
At [2] per Lord Hoffmann.
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the sense of a measure of control over and responsibility for the dangerous situation”.45 On the facts, the BGS had no control whatever, either in law or in practice, over the supply of drinking water in Bangladesh. Nor had it – whether by statute or contract or otherwise – any responsibility for ensuring the water was safe to drink. In addition, there was no “particular transaction” for which the report had been compiled, and the class of potential claimants was therefore the entire population of Bangladesh, or at least that of the areas tested by the defendant’s survey.46 Perrett v Collins47, on which the claimant relied, was therefore distinguishable, being a case in which the defendant aircraft inspector’s certification of airworthiness was a statutory requirement, imposed for the protection of passengers and others, without which the aircraft could not lawfully be flown. The claimant there fell within the class of persons whose safety the certification was intended to ensure. c) Commentary
It is impossible to dissent from Lord Hoffmann’s opinion that the claimant’s action was “hopeless”. The only surprise is that it got as far as the House of Lords. Before the Lords, the claimant conceded that the claim based on the defendant’s positive duty to test for arsenic was ill-founded, and relied exclusively on the claim for misrepresentation. However, the courts have long indicated their reluctance to recognise a duty of care in respect of words that could be relied upon by a potentially very wide or indeterminate class of persons. In his classic dissenting judgment in Candler v Crane, Christmas & Co,48 subsequently approved by the House of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd,49 Denning LJ argued that a duty of care should arise where a person gives information in the knowledge that it will be relied on for a particular purpose and in connection with a particular transaction, but expressly ruled out the imposition of liability on a scientist or expert (e.g. a marine hydrographer) for careless statements in his published works; such a person publishes his work for the purpose of giving information and not with a particular transaction in mind.50 Quite correctly, indeed inevitably, the House of Lords in the present case regarded the facts with which it was faced as entirely indistinguishable from those of Lord Denning’s example.
45 46 47 48 49 50
At [38] per Lord Hoffmann. At [48] per Lord Brown. [1998] 2 Lloyd’s Reports 255. [1951] 2 King’s Bench (KB) 164. [1964] AC 465. [1951] 2 KB 164 at 183.
19
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4. Barker v Corus (UK) plc [2006] UKHL 20, [2006] 2 AC 572, [2006] 3 All ER 785:51 Causation; Proportionate Liability a) Brief Summary of the Facts
20
The House of Lords was faced with three separate appeals, each of which concerned death from mesothelioma following asbestos exposure attributable in part to the defendant employers. During the relevant period, each of the deceased had worked for more than one employer, and many of the employers – and their insurers (if known) – were now insolvent and unable to contribute to any award of damages. In one case, the insolvent employers were responsible for 83% of the period for which exposure took place; in another, for 57%. In the third case (Barker), the majority of the deceased’s exposure was during his employment with the defendant employer, with shorter periods of exposure during his employment with an employer who was now insolvent and at a time when he was self-employed. The appeal raised two issues relating respectively to the limits of the exceptional liability for materially contributing to risk recognised by the House of Lords in Fairchild v Glenhaven Funeral Services Ltd,52 and to the extent of that liability. First, was the Fairchild approach precluded where the deceased himself was responsible for part of the asbestos exposure, because he was self-employed for part of the period in question? Secondly, was each defendant liable under the rule jointly and severally in the full amount of the damage consequent on the mesothelioma, or only for a proportionate share reflecting his contribution to the total risk? b) Judgment of the House of Lords
21
Finding unanimously in favour of the Barker claimant on the first issue, the House of Lords ruled that the Fairchild exception might still apply even though part of the asbestos exposure that could have caused the mesothelioma was the responsibility of the deceased himself. Although the injustice of denying the claimant a remedy was weaker in such a case than where his injury must have been caused by another person’s breach of duty, even if it could not be shown whose, the balance of fairness was still in favour of applying the Fairchild exception.53 In fact, the House of Lords in Fairchild had already assumed that the principle could be applied even though part of the relevant exposure was nontortious, as was evident in its approval, as an application of the same principle, of its previous decision in McGhee v National Coal Board.54 It was therefore “irrelevant whether the other exposure was tortious or non-tortious, by natural causes or human agency or by the claimant himself.”55 51
52
53 54 55
Noted by J. Scherpe [2006] CLJ 487; A. Kramer (2006) 122 LQR 547; E. Peel [2006] Lloyd’s Maritime and Commercial Law Quarterly (LMCLQ) 289, and J. Thomson (2006) 10 Edinburgh Law Review (Edin LR) 421. See further M. Jones, Proving Causation – Beyond the “But for” Test, (2006) 22 PN 251 and D. Hogg, Re-establishing Orthodoxy in the Realm of Causation, (2007) 11 Edin LR 8. [2002] UKHL 22; [2003] 1 AC 32, noted in H. Koziol/B.C. Steininger (eds.), European Tort Law 2002 (2003) 144 ff. At [117] per Lord Walker. [1973] 1 WLR 1. At [17] per Lord Hoffmann.
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On the question of the extent of liability, the Law Lords ruled in favour of the proportionate damages approach by a majority of 4–1 (Lord Rodger dissenting). The Court of Appeal had been wrong to conclude that apportionment was inappropriate, because mesothelioma was an indivisible injury, and that each defendant’s liability was therefore joint and several. As the basis of the liability under Fairchild was the wrongful creation of the risk,56 fairness and consistency of approach suggested that the damage the defendant should be regarded as having caused was the creation of such a risk, and his liability should therefore be proportionate to the risk he had created.
22
c) Commentary
The decision provides important clarification of the House of Lords’ Fairchild decision of 2002,57 recognising a liability for material contribution to risk in cases of uncertain causation. Though the adoption of a rule of proportionate liability has been attacked in some quarters as contrary to principle,58 the criticism is misplaced. The truth is that Fairchild was not based on existing principle at all, and represented an exception from the normal requirements of causation in the interests of claimants. Though a rule of joint and several liability may be fair where the defendant has in fact caused or contributed to the claimant’s injury, it does not follow that the same rule should be applied where the defendant has merely contributed to the risk of the claimant’s injury. The Fairchild approach was based on the view that the injustice to the claimant, if the ordinary rules of causation were applied, outweighed the injustice to the defendant, if held liable without proof of causation. But that does not mean that the injustice to the defendant is negligible. In fact, as Lord Hoffmann remarked, the proportionate liability approach serves to “smooth the roughness of the justice” which would otherwise result.59 It is also consistent with the approach taken to liability for materially contributing to a divisible injury, for example, asbestosis (a progressive condition which gets worse with additional exposure to asbestos).60 In fact, there seems to be no reason in principle why the risk which the Law Lords regarded as the actionable damage under Fairchild should not similarly be regarded as divisible. As Lord Hoffmann (again) observed, “Chances are infinitely divisible.”61 How precisely the liability should be apportioned was not something on which their Lordships were called to rule, and they were content to leave it to the parties, their insurers and advisers to devise practical and economical criteria for doing so. It may be noted that the proportionate liability approach is also that adopted in the Principles of European Tort Law (art. 3:103 and 3:106).
23
As noted above, there was not unanimous support for the view that the damage which the claimant is deemed to have suffered is his exposure to risk,
24
56
57 58 59 60 61
At [35] ff. per Lord Hoffmann. Lord Scott and Lord Walker expressly agreed with Lord Hoffmann’s analysis. Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22. See, e.g., Thomson (2006) 10 Edin LR 425–6. At [43]. See Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421. At [35]. See also [113] per Lord Walker.
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even amongst the majority Law Lords,62 and the approach seems difficult to reconcile with the clear statements in the judgment that liability accrues only when the risk materialises and not before.63 Lord Rodger (dissenting) did not accept that the damage that the deceased had suffered was being wrongfully exposed to risk, rather than the mesothelioma itself, and considered that the wrongful exposure to risk was correctly analysed as establishing a causal connection between the defendant’s breach of duty and the cancer. He observed that the real reason the defendants were arguing for apportionment was that several of their number (and their insurers) were insolvent, leaving the solvent defendants (or their insurers) liable for the whole of the damage without any effective recourse against the other wrongdoers.64 In his view, however, the risk of insolvency of a fellow wrongdoer was best placed, as a matter of policy, on the other wrongdoers. Such “rough justice” was entailed by the law of joint and several liability, and was the normal approach where the claimant’s injury was (as in the case of mesothelioma) indivisible, and it was not obvious that the courts, rather than Parliament, should step in to throw a “lifeline” to wrongdoers and their insurers.65
25
Lord Rodger’s reference to Parliamentary intervention was prescient, for Parliament was in fact induced to act almost immediately to reverse the effects of Barker, in the interests of the victims of mesothelioma. The matter is discussed above, in relation to the Compensation Act 2006. It should be noted, however, that the Act restores joint and several liability only in respect of cases of mesothelioma, and that Barker therefore remains good law in all other cases falling under the Fairchild exception. 5. Corr v IBC Vehicles Ltd [2006] EWCA Civ 331, [2006] 2 All ER 929: Victim’s Suicide; Causation and Remoteness of Damage a) Brief Summary of the Facts
26
The claimant’s husband committed suicide some six years after a serious workplace accident that almost decapitated him, leaving him with very bad physical and mental injuries. He suffered from severe post-traumatic depression, for which he received hospital treatment. He had no prior history of mental illness, and there was no other cause of his suicide. The claimant brought an action for damages on behalf of her husband’s estate and his dependants. The defendant, her husband’s employer, admitted liability for the initial accident, and for the deceased’s physical and mental injuries, but denied they were liable to the dependants for the losses they suffered as a consequence of the deceased’s suicide. The trial judge ruled that the suicide was not reasonably foreseeable to the defendants and was therefore too remote to entitle the dependants to recover damages. The claimant appealed.
62 63 64 65
Baroness Hale expressly rejected this analysis: [120]. At [48] per Lord Hoffmann, at [61] per Lord Scott, and [120] per Baroness Hale. At [89]. At [90].
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b) Judgment of the Court
The Court of Appeal found that the deceased’s suicide did not break the chain of causation as it was the product not of his free will but of the sense of hopelessness engendered in him by his post-traumatic depression. For similar reasons there could be no defence of volenti non fit iniuria. Furthermore (Ward LJ dissenting), the suicide could not be regarded as too remote a consequence of the defendant’s tort to give rise to liability. Following the decision of the House of Lords in Page v Smith,66 once it is established that physical injury was reasonably foreseeable and that the defendant owed a duty of care, it is immaterial whether the injury in fact sustained is physical, psychiatric or both. The defendant was therefore liable to pay damages for the physical injuries suffered by the deceased in the initial accident, and for the depression into which he subsequently fell. The compensable consequences of the latter included the deceased’s eventual suicide. It was not necessary to establish the reasonable foreseeability of the suicide itself. Nor was there any reason of policy such as to justify the conclusion that damages should not be recovered in respect of losses resulting from a person’s suicide, which has not been a criminal offence in English law since 1961.
27
c) Commentary
A similar outcome had previously been reached in Pigney v Pointers Transport Services Ltd,67 a decision of Picher J dating from 1957. As a first instance decision, it was not binding on the trial judge here and he chose not to follow it, finding that it was inconsistent with the approach to remoteness introduced by the Privy Council decision in The Wagon Mound68 in 1961. Prior to that decision, a test of direct consequences was applied, following the case of Re Polemis.69 The Wagon Mound introduced a requirement that the type of damage suffered by the claimant should be reasonably foreseeable. The present case demonstrates, with convincing logic, that this change of approach does not necessarily entail the failure of a claim based on the suicide of an accident victim, though it may well be difficult in future cases to disentangle the effects of the accident from other potential causes of the deceased’s decision to take his own life.
28
6. Mbasogo v Logo Ltd [2006] EWCA Civ 1370, [2007] 2 WLR 1062:70 Sovereign Immunity; Conspiracy; Intentional Infliction of Mental Harm a) Brief Summary of the Facts
The claimants were the President and the Republic of Equatorial Guinea in West Africa. They alleged that the defendants had conspired to overthrow the 66 67
[1996] 1 AC 155. [1957] 1 WLR 1121.
68
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co [1961] AC 388.
69
[1921] 3 KB 560. Noted by A. Briggs (2007) 123 LQR 182.
70
29
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government of the country by means of a military coup in 2004. The attempted coup failed. In March 2004, an advance group of mercenaries was arrested in Equatorial Guinea and the main assault force was detained by the authorities in Zimbabwe. In the present proceedings, the first claimant alleged that the coup attempt caused him apprehension and fear for his own and his family’s safety, believing that they were likely to be injured or killed in the course of the attack. It was also alleged that the defendants’ actions caused “mayhem” in the country and led to a reduction in foreign aid. The claimants sought to establish liability on the basis of assault, conspiracy and the intentional infliction of mental harm by unlawful means. A first instance judge struck out the majority of the claims, and the claimants appealed to the Court of Appeal. b) Judgment of the Court
30
The Court of Appeal ruled that: (1) the claim was not justiciable in an English court insofar as it related to the exercise of sovereign authority in a foreign state (the claimants could not seek compensation for losses attributable to action to protect the citizens and state of Equatorial Guinea, as opposed to damage to the claimants’ personal interests); (2), the facts alleged by the first claimant did not amount to the tort of assault, as it was not alleged that the defendants had the capacity to commit an assault on him (there was no suggestion that the advance force in Equatorial Guinea had the capacity to carry out an immediate attack); (3) liability for both conspiracy and (assuming it existed as a separate tort, a matter on which the Court expressly reserved its opinion) the intentional infliction of harm by unlawful means did not extend to the award of damages for mere distress, falling short of bodily or mental injury. c) Commentary
31
The decision has attracted considerable interest, and criticism, from the standpoint of private international law.71 For the tort lawyer, the chief interest of the decision lies in the Court’s rejection of the claim, by the President, that the use of unlawful means intended to cause, and actually causing, emotional distress was actionable in damages. The claim was put on two alternative bases: the established tort of conspiracy by unlawful means, and a “novel” tort of intentionally inflicting injury by unlawful means. The rule in the famous case of Wilkinson v Downton72 provides for a general liability for intentional injury, whether or not the means used are unlawful, but the weight of authority is against its application to mental injury falling short of a recognised psychiatric condition.73 However, the House of Lords has yet to rule on the issue. Indeed, Lord Hoffmann stated in Hunter v Canary Wharf Ltd74 that he saw no reason why a tort of intention should be subject to the rule which excludes compensation for mere distress, inconvenience or discomfort in actions based on neg71 72 73
74
Ibid. [1897] 2 QB 57. See, especially, Khorasandjian v Bush [1993] QB 727; Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721; [2003] 3 All ER 932. [1997] AC 655 at 707. See also Wainwright v Home Office [2004] 2 AC 406 at [44]–[46] per Lord Hoffmann.
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ligence, the policy considerations being “quite different”. Nevertheless, the Court of Appeal was bound by its own previous case-law to reject the action based on Wilkinson v Downton alone, and the claimant appears to have sought to get around this difficulty by framing his cause of action in terms of unlawful means. Somewhat questionably, the Court treated itself as bound by the earlier cases anyway. More convincingly, it ruled that the general principle that mere mental suffering does not sound in damages was too well-established to warrant a departure from it even when unlawful means were present. 7. Jameel v Wall Street Journal Europe SPRL [2006] UKHL 44, [2007] 1 AC 359, [2006] 4 All ER 1279:75 Defamation; Media Privilege; Damage a) Brief Summary of the Facts
The defendant’s newspaper published an article about investigations into terrorist funding conducted by the Saudi Arabian banking authorities, at the request of US law enforcement agencies, in the aftermath of the 9/11 attacks on New York and Washington. The article referred to a group of companies of which the first claimant was president and to which the second claimant belonged. A jury found that the article was defamatory of the claimants in suggesting (at a minimum) that there were reasonable grounds to investigate their involvement in the witting or unwitting funnelling of funds to terrorist organisations. The article stated that the companies “couldn’t be reached for comment”. In fact, the author had spoken to an employee the day before publication, but the employee had no authority to make a statement and asked for publication to be delayed for 24 hours so that the first claimant, who was overseas, could be contacted. The journalist declined the request. In the claimants’ action for damages, the newspaper did not attempt to prove the truth of the defamatory imputation, but sought to strike out the claim on the basis of Reynolds privilege. It also argued, in the alternative, that the claim should be struck out because a trading corporation was not entitled to sue for libel without pleading or proving special damage (i.e. loss with a provable financial value). Both the trial judge and the Court of Appeal rejected the defendant’s argument on the issue of special damage. They also found that the defendant had no defence of qualified privilege because it failed the test of responsible journalism established by the House of Lords in Reynolds v Times Newspapers Ltd.76 On this point, the reasoning of the Court of Appeal was narrower than that of the trial judge, and rested exclusively on the defendant’s failure to delay publication to allow the first claimant the opportunity to comment. The newspaper appealed to the House of Lords.
32
b) Judgment of the House of Lords
Allowing the appeal, the House of Lords ruled that the Court of Appeal had erred in rejecting the defence of qualified privilege, as the failure to obtain the claimants’ comment was an insufficient basis on which to conclude that the 75 76
Noted by J. Rowbottom [2007] CLJ 8. [2001] 2 AC 127.
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newspaper had fallen below the standard of responsible journalism. In fact, the newspaper had taken adequate steps to verify its story, and the article was unsensational in tone and written by an experienced specialist. Additionally, it was unlikely that the claimant would have made any comment that would have made a difference to what was published. It was the very nature of covert surveillance that its target was unaware of what was going on. Though the House of Lords in Reynolds had highlighted a number of factors which should, in suitable cases, be taken into account in applying the test of responsible journalism,77 these were to be treated merely as “pointers” and not as “a series of hurdles to be negotiated by a publisher before he could successfully rely on qualified privilege.”78
34
On the other issue under appeal, a majority of the House of Lords (Lord Hoffmann and Baroness Hale dissenting) found that there was no requirement in English law that a trading corporation must plead and prove special damage in order to succeed in an action in defamation. No such requirement had previously been recognised, and none was required by the United Kingdom’s obligations under the European Convention of Human Rights, as the Strasbourg Court had itself accepted in Steel and Morris v United Kingdom.79 Lord Bingham noted in particular that the chilling effect of the existing rule had been exaggerated: even if the rule were to be modified, the company’s directors and other individuals would be free to sue in their personal capacity, and the additional chilling effect resulting from the possibility of a claim by the company was therefore unlikely to be significant.80 He concluded ultimately that the proposed modification of the law should be rejected for two main reasons: first, the good name of a company was a thing of value and there was no good reason why the law should not protect it; secondly, contrary to the defendant’s contention, a publication damaging to a company’s commercial reputation would not necessarily result in provable financial loss, especially where the company pursued legal action promptly and diligently.81 Lord Hope and Lord Scott agreed with Lord Bingham. c) Commentary
35
The decision is a welcome corrective to a tendency evident in recent decisions of the lower courts, including the Court of Appeal in the present case, to construe the Reynolds test of responsible journalism too rigidly. The ten factors identified in Reynolds as relevant to the test’s application were not intended as a set of hurdles, each of which had to be surmounted if the defence of privilege was to prevail. They were merely “pointers” to be taken into account in construing the defendant’s conduct in the round. This approach gives much greater leeway to those seeking to report the news, and was indeed portrayed in the media as a victory for press freedom.82 77 78 79 80 81 82
[2001] 2 AC 127 at 205 per Lord Nicholls. At [33] per Lord Bingham. Application 68416/01, (2005) 41 European Human Rights Reports (EHRR) 22. At [21]. At [26]. See, e.g., the leader column in The Times on 12 October 2006.
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The Law Lords’ decision on the issue of special damages has attracted less attention but is significant as a further confirmation of the rather limited impact on the law of defamation of the Human Rights Act 1998, incorporating into English law the Convention right to freedom of expression. On several occasions, it has been argued in the courts that the art. 10 right requires reconsideration of a particular rule of defamation law,83 but perhaps the only example of a court departing from established defamation principles on the basis of arguments under the Human Rights Act is a somewhat overlooked first-instance (and therefore comparatively fragile) decision on liability to “look-alikes”.84 The claimants here sought a restatement of the law comparable to that effected by the House of Lords in Derbyshire County Council v Times Newspapers,85 which ruled that democratically elected organs of government (including local authority corporations) had no right to maintain an action of damages for defamation. But the House expressly approved the established approach as regards trading corporations, and, with the Strasbourg Court content to treat this as a matter within the margin of appreciation of national authorities,86 it is hardly surprising that the panel hearing Jameel felt no imperative need to disrupt the status quo ante.
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8. HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776, [2007] 2 All ER 139: Privacy and Breach of Confidence a) Brief Summary of the Facts
His Royal Highness Prince Charles, the Prince of Wales and heir to Queen Elizabeth II, kept handwritten journals to record his impressions and feelings on other countries in the course of overseas tours. One related to the handover of the former British colony Hong Kong to the Chinese in 1994. A number of the Prince’s comments in the journal could be considered politically insensitive and/or embarrassing. The Prince was in the habit of copying his journals to selected friends, journalists, politicians and other acquaintances – maybe as many as 75 people in all. An unauthorised copy of the journal was obtained by the Mail on Sunday newspaper from one of the Prince’s employees, who was acting in breach of confidence, and the newspaper published substantial extracts. Prince Charles claimed, amongst other things, breach of privacy and confidence – to which the newspaper countered that the publication was justified under art. 8(2) ECHR as necessary in the interests of freedom of expression (art. 10 ECHR). The Prince accepted that his claim entailed a restriction of the newspaper’s freedom of expression, but countered that this was justified under art. 10(2) as necessary to protect his right to privacy and confidence. The High Court gave summary judgment in the Prince’s favour. The newspaper appealed. 83
84 85
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See, e.g., Loutchansky v Times Newspapers Ltd (No 2) [2001] EWCA Civ 1805; [2002] QB 783, noted in H. Koziol/B.C.Steininger (eds.), European Tort Law 2001 (2002) 162 ff. O’Shea v MGN Ltd [2001] Entertainment and Media Law Reports (EMLR) 40. [1993] AC 534. It is notable that the House of Lords in this case relied exclusively on the English common law, expressly disclaiming any reliance on the European Convention. Steel and Morris v United Kingdom, Application 68416/01, (2005) 41 EHRR 22.
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b) Judgment of the Court
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The Court of Appeal dismissed the appeal. The information in the Prince’s journals was both confidential and private, the latter judgement depending on “an interdependent amalgam of circumstances”, including, for example, “the nature of the information, the form in which it is conveyed and the fact that the person disclosing it was in a confidential relationship with the person to whom it relates.”87 Confidential information was not necessarily “private” under art. 8, as the example of trade secrets demonstrated. But in the present case, even ignoring the breach of confidence, the form and content of the journal were sufficient to make it private and therefore entitled to protection under art. 8(1) as qualified by art. 8(2). Though the events described in the journal were matters of public record, it was the Prince’s comments about the events that were the essence of the publication, and these were not in the public domain. The Prince’s habit of copying his journals to friends and acquaintances did not disentitle him from relying on their confidentiality, as the copies distributed to them were marked “private and confidential” and there was no evidence that anyone had previously breached that confidence. Furthermore, the balance between the Prince’s right to confidence and privacy and the newspaper’s freedom of expression tipped in favour of the former. Even where the claimant relied exclusively on confidence, it was not enough that the information was a matter of public interest; the test was whether it was in the public interest that the confidence should be breached. It was a test of proportionality. On the facts, the contribution made to any matter of public interest through the publication of the journal was minimal, and was outweighed by the strong public interest in preserving the confidentiality of private journals and in employees respecting the obligations of confidence they have assumed. c) Commentary
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The case is interesting because it demonstrates with great clarity how fully the English courts have assimilated the concepts of the ECHR into their analyses of private law rights of privacy and confidence. Rather than protecting privacy through the framework of the English law of confidence,88 the Court here protects confidence as an aspect of the Convention right of privacy. Though this was a “traditional” claim for breach of an express contractual obligation of confidence, the Court chose not to approach the case through the established framework of analysis developed in the domestic case-law, and focused instead on the structure of the Convention rights under art. 8 and 10. See also the observation of Buxton LJ in another recent case:89 “Those articles are now not merely of persuasive or parallel effect but … are the very content of the domestic tort that the English court has to enforce.”
87 88 89
At [36] per Lord Phillips, the Master of the Rolls (MR), delivering the judgment of the Court. See Campbell v MGN Ltd [2004] 2 AC 457. McKennitt v Ash [2006] EWCA Civ 1714; [2007] EMLR 4 at [11]. See, in addition, Browne v Associated Newspapers Ltd [2007] EWCA Civ 295; [2007] 3 WLR 289.
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9. Watkins v Secretary of State for the Home Department [2006] UKHL 17, [2006] 2 AC 395:90 Misfeasance in Public Office; Meaning of Damage a) Brief Summary of the Facts
The claimant was a convicted prisoner serving a sentence of life imprisonment. He was engaged in a number of legal proceedings. On several occasions during a period of more than two years, his confidential legal correspondence was opened and read by prison officers in contravention of the Prison Rules. He brought proceedings against the officers concerned, and the Home Office as their employer, seeking damages for misfeasance in public office. At trial, the judge found that all but three of the officers had acted without bad faith, a necessary element of the tort, and dismissed the claims which did not satisfy this requirement. He also dismissed the claims in respect of the three officers who had acted in bad faith, on the ground that the claimant had failed to prove any financial loss or physical or mental injury. The claimant appealed, arguing that misfeasance in public office was a tort that was actionable per se, and so capable of giving rise to liability without proof of damage. The Court of Appeal91 allowed the appeal, taking an intermediate position of its own devising: although not generally actionable per se, misfeasance in public office was capable of giving rise to liability without proof of damage in circumstances where there had been an intentional interference with the claimant’s constitutional right, for example, as on the facts of the present case, the right of access to a court. The claimant was therefore entitled to nominal damages, and to an assessment of his claim for exemplary damages. The Home Office and the three officers appealed to the House of Lords.
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b) Judgment of the House of Lords
Allowing the appeal, the House of Lords ruled that the tort of misfeasance in public office is never actionable without proof of “material damage” in the sense of financial loss or physical or mental injury. The latter included recognised psychiatric illness but not distress, injured feelings, indignation or annoyance. It had been understood since the seminal case of Ashby v White92 in 1703 that material damage was an essential ingredient of the tort, and it would be wrong to disturb that principle unless there were compelling grounds for doing so. In fact, there were several reasons for not taking that course.93 First, in the absence of a codified constitution, it was unclear what other rights would be treated as “constitutional” in the relevant sense, and this would inevitably be a source of argument and dispute. Secondly, it was undesirable to introduce by judicial decision, without consultation, a new approach to the remedying of public law wrongs, especially at a time when that matter was under active con-
90 91 92
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Also reported at [2006] 2 All ER 353. Noted by R. Stevens (2006) 122 LQR 565. [2004] EWCA Civ 966; [2005] QB 883. (1703) 1 Brown’s Cases in Parliament (Bro PC) 62, 1 English Reports (ER) 417 (House of Lords). For analysis of this aspect of Ashby v White, see Lord Rodger at [50]–[57]. See especially [26] per Lord Bingham.
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sideration by the Law Commission.94 Thirdly, a number of alternative remedies were available to a person in the claimant’s position, including judicial review, and the possibility of disciplinary and criminal sanctions against the officers concerned.95 These alternatives included proceedings under the Human Rights Act 1998, though that was in force only in respect of one of the three incidents on which the claimant was relying in the appeal. Fourthly, the passage of the 1998 Act indicated Parliament’s intent that infringement of the core human and constitutional rights protected by the Act should be remedied under it and not by the judicial development of parallel remedies. Lastly, what the claimant was seeking was not compensation for damage but, in effect, punishment for the defendants’ wrongdoing. It was not the policy of the law to encourage exemplary damages, and such awards were particularly undesirable where there was no material damage to compensate.96 c) Commentary
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The tort of misfeasance in public office can be traced back to Ashby v White in 1703, but in the early 20th century the action was almost completely forgotten, only to be revived in a series of decisions in the second half of the century.97 The authoritative modern statement of its elements is to be found in Three Rivers District Council v Governor and Company of the Bank of England (No 3),98 in which the House of Lords recognised two limbs of the tort, the first requiring “targeted malice” (i.e. an intention to injure the claimant), the second merely the defendant’s knowledge that the act is unlawful and will probably injure the claimant. The present decision demonstrates the Law Lords’ determination not to convert the tort into an all-purpose remedy for grievances against public officials. As was noted in their Lordships’ opinions, the Human Rights Act 1998 now provides a mechanism for resolving such cases, with the payment of compensation for non-material loss in appropriate cases, and there was therefore no reason to develop a parallel remedy at common law. It may be noted that Lord Bingham, who in D v East Berkshire Community Health NHS Trust99 had argued against any “stunting” of the development of the common law consequent on the implementation of the 1998 Act, made clear that he considered the two cases distinguishable. Watkins was a case in which the application of settled principle pointed strongly against the recognition of a remedy in tort, and not one (like D) where settled principles supported its recognition.
94
95 96
97
98 99
See Law Commission Public Law Team, Monetary Remedies in Public Law: A Discussion Paper (2004) and, subsequent to the above decision, Law Commission, Remedies Against Public Bodies: A Scoping Report (2006). But note Lord Walker’s scepticism on this point at [69]. See also [31]–[32] per Lord Hope, [64] per Lord Rodger, and [81] per Lord Carswell. Lord Walker, by contrast, considered that exemplary damages had a role to play in discouraging abuses of power by public officials: [75]. See, e.g., the Privy Council’s recognition in Dunlop v Woollahra Municipal Council [1982] AC 158 at 172 that the tort was “well-established”. [2003] 2 AC 1. [2005] UKHL 23; [2005] 2 AC 373 at [50].
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C. LITERATURE In addition to the works discussed below, the reader should note new editions of the leading tort law textbook,100 a highly-respected practitioners’ reference work,101 a useful student primer,102 and Tony Weir’s stimulating Introduction to Tort Law.103 Important articles were published on the duty of care,104 liability for economic loss,105 the liability of public bodies,106 causation,107 damages,108 privacy,109 and “compensation culture”.110
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1. C. Booth/D. Squires, The Negligence Liability of Public Authorities (Oxford University Press, 2006) This weighty volume contains the most detailed treatment of the negligence liability of public authorities in English law to be found anywhere. It is designed primarily for practitioners, but the analysis is underpinned by a thorough grasp of the main lines of academic writing in the area, and the book deserves close attention from anyone wishing to go beyond the necessarily limited accounts to be found in the general tort textbooks. The quality of analysis is exceptionally high. The authors accurately perceive the negligence liability of public authorities to be an area of law that has developed in a number of independent pockets, without a coherent and stable set of governing principles, and seek to redress this in the first part of their book. This gives an excellent overview of the elements of a negligence claim against a public authority, and the legal principles that cut across the specific pockets of case-law. The authors then focus, in the second part of the book, on particular areas of public authority negligence liability: social services; education; the police and emergency services; custodial detention; regulators in the areas of health and safety, planning, the environment, banking, and the professions; highways; housing and land use; and the armed forces. Throughout, the authors demonstrate how decisions in particular areas could usefully have made reference to principles developed in 100 101
102 103
104
105 106
107
108
109 110
W.V.H. Rogers, Winfield & Jolowicz on Tort (Sweet & Maxwell, 17th ed. 2006). A.M. Dugdale (ed.), Clerk & Lindsell on Torts (The Common Law Library, Sweet & Maxwell, 19th ed. 2006). S. Hedley, Tort, Core Text Series (Oxford University Press, 5th ed. 2006). T. Weir, An Introduction to Tort Law (Clarendon Law Series, Oxford University Press, 2nd ed. 2006). D. Howarth, Many Duties of Care – Or A Duty of Care? Notes from the Underground, (2006) OJLS 449; Stanton, (2006) 22 PN 134; Morgan, (2006) 22 PN 206. Barker, (2006) 26 OJLS 289. R. Bagshaw, Monetary remedies in public law – misdiagnosis and misprescription, (2006) 26 Legal Studies (LS) 4; C McIvor, The negligence liability of child welfare professionals and policy-based immunities: a critique of recent English developments, (2006) 14 Torts Law Journal (TLJ) 205. J. Stapleton, Two causal fictions at the heart of U.S. asbestos doctrine, (2006) LQR 189; J. Stapleton, Occam’s razor reveals an orthodox basis for Chester v Afshar, (2006) 122 LQR 426; Jones (fn. 51). R. Lewis, The Politics and Economics of Tort Law: Judicially Imposed Periodical Payment of Damages, (2006) 69 MLR 418. N. Moreham, Privacy in Public Places, [2006] CLJ 606. R. Lewis/A. Morris/K. Oliphant, Tort personal injury claims statistics: Is there a compensation culture in the United Kingdom? (2006) 14 TLJ 158; Williams, [2006] JPIL 347.
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other areas, even if only to explain why differences in treatment are appropriate. 2. C. van Dam, European Tort Law (Oxford University Press, 2006)
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This excellent comparative study is destined to be a first-choice text for many of the small but growing number of courses taught in English on European Tort Law. Part I of the book (“systems of liability”) gives a lucid overview of tort law in the principal jurisdictions selected, namely, England, France and Germany, prefaced by short and helpful introductions dealing with the history of each system, its sources of law, court structure, etc.. There are separate chapters on Europe (covering both European Community and European Human Rights law) and Ius Commune. The latter gives a helpful overview of the scholarly literature that has appeared in the field of European Tort Law in the last 10 to 15 years, and places it in the context of earlier quests for a European ius commune. There follows, in Part II of the book, a comparative analysis of the general requirements of tortious liability, under the headings of protected interests, intention and negligence, violation of a statutory rule, strict liability, causation, and damage and damages. The third and final part of the book contains comparative analysis of particular categories of liability: liability for movable objects, liability for immovable objects, liability for other persons, liability in emergency cases, and liability of public authorities. The book is clearly and engagingly written, with extensive reference to leading cases and other sources. 3. J. Gordley, Foundations of Private Law: Property, Tort, Contract, Unjust Enrichment (Oxford University Press, 2006)
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Gordley has produced a masterly analysis of the Aristotelian foundations underpinning his chosen fields of law. He argues that the these foundations, though based on common sense, were given their archetypal expression in the 16th and 17th centuries by jurists who subsequently became known as the late scholastics, or Spanish natural law school (including now largely forgotten names such as Soto, Molina and Lessius). Their aim was to synthesise Roman law with the ideas of Aristotle and his most renowned follower, Aquinas. After a short introductory section summarising the nature of his enterprise, Gordley deals in turn with his four chosen compartments of private law. His account of tort law includes chapters on the structure of the modern civil and common law of torts, the defendant’s conduct (intent, negligence, strict liability), liability for harm to reputation, dignity, privacy and “personality”, and liability for pure economic loss. Throughout, the author shows the contribution to the development of fundamental principles of writers in the Aristotelian tradition, and how Aristotelian ideas, especially of commutative justice, can illuminate problems of modern tort law (even those which the scholastics did not consider, such as the limitation of tortious liability for purely economic loss).
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4. J. Gordley/A.T. von Mehren, An Introduction to the Comparative Study of Private Law: Readings, Cases, Materials (Cambridge University Press, 2006) This is a successor to von Mehren’s The Civil Law System: Cases and Materials for the Comparative Study of Law, whose first edition appeared in 1957. But so extensive have been the changes that the book cannot be regarded as simply a new edition of that classic work. The book begins with introductory readings on the history of English and Roman law, codification in France and Germany, and the principal institutions in the United States, Germany, France, England and the European Union. The focus then shifts to the principal compartments of private law: property, tort, contract and unjust enrichment. The section on tort law is divided into two parts, the first dealing with the scope of the rights protected (including sections on harm to dignity, invasion of privacy, purely economic harm and harm suffered because another is harmed), the second with the conduct for which one is liable (intent, negligence and strict liability). The extracts include relevant code provisions, case summaries and judgments, and scholarly writings (mainly from textbooks). English lawyers will be surprised that it was possible to write about their tort law without mention of Donoghue v Stevenson. Frustratingly, several of the textbook extracts are from old editions. The authors’ own text – whether introducing new topics or providing additional notes on the extracts – is lucid and informative, but it is sometimes difficult to follow the chain of thought that links together the readings, especially when several follow directly on from each other, without any authorial interjection at all. Nevertheless, this is a stimulating, if rather idiosyncratic, resource.
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5. L. Khoury, Uncertain Causation in Medical Liability (Hart Publishing, 2006) This thorough and informative comparative study is based on the text of the author’s doctoral thesis. Its main purpose is to address the question, Who should bear the consequences of scientific evidential uncertainty in cases of medical malpractice? As the author notes, a strict adherence to the “but for” test of causation (causa sine qua non) can be considered unfair to the patient who is the innocent victim of a proven wrong, and a number of mechanisms have been adopted by the courts to address the perceived injustice. Focusing on the English and Canadian common law, and the civil law of France and Quebec, and demonstrating an impressive grasp of the literature, Khoury identifies three main techniques that have emerged: reversing the burden of proof, the proportional assessment of damages for loss of chance, and inferential reasoning. A particular highlight is her comprehensive review of the medical loss of chance cases in her chosen jurisdictions, and her critical analysis of the arguments for and against the application of loss of chance reasoning in the medical liability context. She concludes that the arguments against are compelling: the medical cases cannot be assimilated with the “classic” loss of chance cases (e.g. preventing the claimant from participating in a beauty contest); loss of chance opens the door to speculative claims, is assessed arbitrarily, and gives an undue role to statistics; it produces unjust results as it allows the judge to ignore the
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absence of causation between the fault and the actual damage; and, lastly, it could lead to an unintended revolution in the rules of evidence and proof with proportional liability replacing the traditional all-or-nothing balance of probabilities approach in every case. The author’s own preferred solution is a more liberal approach to the inference of causation than has hitherto been adopted, especially in cases in which the expert medical evidence is inconclusive. 6. W. Lucy, Philosophy of Private Law, Clarendon Law Series (Oxford University Press, 2006)
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Lucy offers a penetrating and engaging account of some influential theories of private law in the analytical (mainly Anglo-American) tradition. Part I (Who Did What?) looks at core concepts employed in establishing liability: basic responsibility (a term the author prefers to “capacity”); the distinction between acts and omissions; causation (with a strong defence of Hart and Honoré’s “common sense” account of causation111); and wrongfulness. In Part II (Who Pays and Why?) corrective justice and distributive justice accounts of the obligation to compensate are compared, with the author emerging as an advocate of a mixed account rather than one based exclusively on one form of justice or the other. There is in-depth analysis of the work of many of the leading names in tort theory, including Coleman, Weinrib and Honoré. As the author himself concedes, this detailed focus on individual authors and particular works sometimes obscures the bigger picture, and it is not always clear to what extent criticisms of a particular author apply to others who represent broadly the same school of thought. But Lucy lands some good blows on his chosen targets, and his book can be recommended both as an introduction to its subject matter and as a genuine contribution to the debates with which he is concerned. 7. C. McIvor, Third Party Liability in Tort (Hart Publishing, 2006)
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This slim but combatively argued book is a revised version of the author’s doctoral dissertation. Her starting point is that “the very idea of holding one person liable for harm committed by another [is] incompatible with basic moral and legal principles, and contrary to the normative structure of English tort law” (p. 2). For her, third party liability is necessarily exceptional. Sensibly confining herself to personal – as opposed to vicarious – liability, she seeks to clarify the current rules on tortious liability for omissions, and their purpose, before embarking on an analysis of the case-law in a number of specific contexts: liability for the acts of an irresponsible other (e.g. a minor) under one’s authority and control; liability for the acts of third parties using one’s property; third party liability in respect of the intoxicated; the liability of referees and sport governing bodies for injuries caused by competitors in organised sport; and third party liability actions involving public authority defendants. A useful, accessible and educative final chapter outlines the extent of liability for the acts of others under French law, drawing appropriate comparisons with the English cases. Though it highlights the exceptional nature of liability for the acts of a third party, the context-specific nature of much of the discussion 111
H.L.A. Hart/T. Honoré, Causation in the Law (2nd ed. 1985).
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of the English case-law is somewhat at odds with the author’s stated goal of identifying foundational principles to shape the law’s development towards greater doctrinal coherence. But the book displays a sure grasp of the cases and the literature, and immediately becomes an essential reference in respect of its subject matter.
VI. Estonia Janno Lahe and Irene Kull
A. LEGISLATION 1. State Liability Act1 of 2 May 2001, (2001) Riigi Teataja (RT)2 I, 47, 260; Amended Several Times, Last Amendments Are (2006) RT I, 48, 360
1
The Law of Obligations Act (LOA)3, which is the main law concerning tort liability, was not amended in 2006. The only Act which was changed in 2006 was the State Liability Act (SLA), which regulates the liability of the state when exercising its powers. In case of damage in private relationships, LOA will be applied, even though it may have been caused by the state (SLA § 1 par. 2). After many years of constant changes in the legal system, the time has come to develop law through court practice and not by changes in legal acts. Changes which were made in the State Liability Act were caused partly as a result of the urgent need to regulate some unsolved questions in law concerning state liability in cases were the European Court of Human Rights had satisfied persons’ individual claims.
2
Changes to the SLA were made in 2006 and came into force on 18 November 2006. SLA § 7, which regulates the bases for libel, was supplemented with subsec. 21, which states that, in addition to the grounds in subsec. 1 and 2, a person can claim compensation of damage that has been caused by actions or inactivity of the state if the European Court of Human Rights has satisfied his individual claim arising from the infringement of the European Convention on Human Rights and Fundamental Freedoms or its protocol by the state, the person’s rights were gravely violated and the person has no other means to regain his rights. Damages can also be claimed by a person who has filed a claim in the European Court of Human Rights in a similar case and on the same legal 1
2 3
In Estonian: Riigivastutuse seadus. Hereinafter referred as SLA. In force from 1 January 2002. Available in English: http://www.legaltext.ee. All the most important Estonian legislative Acts (but not always updated) are available in English: http://www.legaltext.ee. State Gazette, hereinafter referred as RT. Law of Obligations Act (LOA) of 26 September 2001, (2001) RT I, 81, 487; amended several times, last amendments are (2005) RT I, 39, 308; 61, 473.
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grounds or who has the right to file a claim in a similar case and on the same legal grounds before the deadline stipulated in art. 35 subsec. 1 of the European Convention on Human Rights and Fundamental Freedoms. According to SLA § 7 subsec. 1, a person whose rights are violated by the unlawful activities of a public authority in a public law relationship (hereinafter injured party) may claim compensation for damage caused to him/her if the damage could not have been prevented and cannot be eliminated by the protection or restoration of rights in the manner provided for in §§ 3, 4 and 6 of this Act. SLA § 7 subsec. 2 states that compensation for damage caused by a failure to act may be claimed only if an administrative act is not issued in due course or a measure is not taken in due course and the rights of a person are violated thereby.
3
Thus the change expands a person’s rights, allowing him to claim damages from the state even if the European Court of Human Rights has satisfied the petition, the person’s rights were significantly violated and the person has no more means to regain his rights (e.g. review). In addition to the person whose claim has been satisfied by the European Court of Human Rights, a person who has filed a claim or has the right to bring an action in the same case and on the same legal grounds, has the right to claim damages.
4
SLA § 9, which regulates compensation of non-pecuniary damage by the state, was supplemented with subsec. 3, which states that fault is not a precondition if the claim for compensation of non-pecuniary damage was based on a decision of the Court of Human Rights where a violation of the European Convention on Human Rights and Fundamental Freedoms or its protocol by public authority was established.
5
These amendments are significant as, according to former regulations (SLA § 7 subsec. 1 and 2), natural persons could claim financial compensation for nonpecuniary damage upon wrongful degradation of dignity, damage to health, deprivation of liberty, violation of the inviolability of home or private life or the confidentiality of messages or defamation of honour or good name of the person. According to SLA § 9 subsec. 2, non-pecuniary damage shall be compensated for in proportion to the gravity of the offence and taking into account the form and gravity of the wrong.
6
SLA § 15, that regulates damage caused in the course of judicial proceedings, was supplemented with subsec. 31, which widens the right to claim damages according to SLA. According to this paragraph, a person may claim damages for the wrongs caused by court proceedings as well as by court rulings only if the judge commits a criminal act in the course of the proceedings. Damages can also be claimed for a wrong by the court ruling if it has been committed to resolve the case out of court in the course of an extra-judicial hearing of a matter concerning an administrative offence or a lease dispute if a judge or the official who extra-judicially heard the matter of the administrative offence or the lease dispute committed a criminal offence in the course of these proceedings.
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In addition to the cases listed above, persons have a right from 2006 to demand compensation for damage caused in the course of proceedings or by court rulings if the European Court of Human Rights has satisfied an individual claim and the violation could have resulted in an incorrect court decision and the person has no other possibilities to restore violated rights.
8
Before the mentioned amendments, a person could have claimed compensation for damage caused in the course of judicial proceedings only if a judge or the official who extra-judicially heard the matter of the administrative offence or the lease dispute committed a criminal offence in the course of these proceedings (SLA § 15 subsec. 1 and 2).
9
Thus all the changes in the SLA are related to the ruling of the European Court of Human Rights, which established the state’s infringement of the Convention for the Protection of Human Rights and Fundamental Freedoms or its protocol. Without a doubt, it may be stated that the amendments protect the individual from the state and widen the possibility to claim compensation for damage caused to the individual by the state. It must be taken into account that the establishment of infringement by the European Court of Human Rights may already result in compensation for the person whose rights were violated. At this point it must be noted that, in the period 1999–2006, of the cases brought before the European Court of Human Rights, at least one infringement out of nine cases against Estonia was found.
B. CASES 1. Riigikohus (Supreme Court) 26 September 2006, No. 3-2-1-53-06, (2006) RT III 33, 283: Causation4 a) Brief Summary of the Facts
10
On 11 January 2003 there was an accident in the defendant’s, i.e. employer’s, building that caused severe bodily harm to an employee, who was buried under an unsupported partition wall. The victim was hospitalised and under medical care from 11 January 2003 until 21 February 2003 in Narva Hospital. On 21 February 2003 he was allowed to leave the hospital and receive treatment at home, but on 25 February 2003 he died at home. On the death certificate issued on 26 February 2003 the cause of death is pneumo and coronary insufficiency and an embolism of the lung artery, which is also noted on the death certificate as the cause of death. The victim’s son filed a claim seeking monthly damages of € 220, a single lump sum payment of € 5,400 for the loss of maintenance caused by the death of his father as well as interest to the amount of € 1,110.
11
According to the pleadings, the employee died due to trauma he suffered as a result of the accident. The defendant did not recognise the claim, stating that 4
All rulings of the Estonian Supreme Court are available in Estonian: www.riigikohus.ee.
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he did not cause the accident and that the employee did not die from the trauma suffered as a result of the accident. The City Court did not uphold the claim. The District Court left the ruling unchanged and denied the appeal. The courts found that there was no causal link between the death and the accident. b) Judgment of the Court
The Supreme Court dismissed the ruling of the District Court and sent the matter back for revision. The Supreme Court found that the courts should have followed LOA § 127 subsec. 4 according to which the conditio sine qua non test has to be applied to establish the causal link between the action and damage. According to this test, a preceding event (in this case the accident at the defendant’s workplace and injuries caused to the employee), is considered to be the cause of the later event (in this case the death of the victim) if the later event would not have occurred without the preceding event. The so-called elimination method can be used – the action of the defendant is hypothetically left out and whether the consequences would have occurred without this event are investigated. If the consequences would have occurred even without the actions of the defendant, the actions did not cause the damage.
12
Thus the courts had to examine whether the defendant would have lived if the accident had not happened. During this examination it would have become clear whether the victim’s illness, as the cause of death, had been brought about by the accident, i.e. if the illness would also have developed without the injuries caused by the accident, there would be no causal link between the victim’s death and the injuries caused by the accident and thus the accident itself.
13
In the case where the cause of death alternatively is injuries brought about by the victim or an event which is not linked with the actions of the victim (e.g. person’s bad health), then, according to the Supreme Court chamber, it is against the principal of good faith to burden the claimant with the obligation to prove that the cause of damage was an event not linked to the defendant. Thus, in case of delictual liability for causing injuries to or the death of a person, the claimant has to prove the defendant’s actions as the possible reason for damage. In order to free himself from the obligation to pay damages in case of competition of causes of damage, the defendant has to prove that his actions did not result in death, i.e. that the cause of death was the other alternative event.
14
Additionally, the Supreme Court found that, in case the defendant’s employees are liable for the cause of death as a wrongful act, the defendant is liable solidarily according to LOA § 1054 subsec. 1, which states that if one person engages another person in the former’s economic or professional activities on a regular basis, the person shall be liable for any damage unlawfully caused by the other person on the same basis as for damage caused by the person if the causing of damage is related to the person’s economic or professional activities. The contributory fault of the aggrieved person shall be taken into account in calculating the amount of damages in all cases described below.
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c) Commentary
16
The Supreme Court explained in this ruling the conditio sine qua non test and the content of the elimination method as well as the importance of its application. More significant is the fact that the Supreme Court gave its opinion on how to resolve the case, when it has been established that the damage was caused alternatively by the circumstances brought about by the victim himself or by another person’s behaviour. The judgment in this case does not derive from law but the court found reasonably that, in this case, the defendant has to prove that his actions did not cause the death.
17
Important is also the explanation of the Supreme Court that, in case the damage may also have been partly caused by other employees, their behaviour cannot be considered as a risk to be borne by the victim but the employer is liable for delicts of other employees according to LOA § 1054 subsec. 1. 2. Riigikohus 3 October 2006, No. 3-2-1-78-06, (2006) RT III 34, 289: Medical Malpractice, Professional Negligence, Causation a) Brief Summary of the Facts
18
On 9 October 1997 the claimant went to the defendant (hospital) due to pain in the lumbar area. The claimant was diagnosed with lumbago, but the conservative treatment was not successful as expected. Because of this, the doctor administered an anaesthetic injection. After the injection the claimant suffered from balance disorder, numbness of the perineum and of the back of his thigh and he did not feel any need to urinate or defecate. On 8 November 1997 the claimant turned to the Haapsalu Neurological Rehabilitation Centre where he was diagnosed with cauda equina (“horsetail”) syndrome (numbness of buttocks, back of thighs, hyperalgesia of body and of limbs). On 2 May 2000 the Ministry of Social Affairs notified the claimant about the 20 April 2000 decision of the expert commission of medical care (commission), which stated that the anaesthetic administered to the claimant is not a prescribed treatment of lumbago; the anaesthetic was not performed correctly because during the treatment the doctor damaged the spinal cord. Among other errors, the position of the syringe was probably not checked by proper means which altogether could be qualified as a medical mistake.
19
The claimant found that his injuries were consequent to the incorrect medical treatment performed by the doctor and thus the defendant caused him damage. The defendant did not recognise the claim. The County Court did not uphold the action. The District Court left the decision unchanged and did not uphold the appeal. b) Judgment of the Court
20
The Supreme Court overruled the District Court decision. The Supreme Court established that as, according to evidence, there is always a risk of fluid getting into the space around the spinal cord, it is not relevant whether or not
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the doctor himself deemed it necessary to check the position of the syringe. Significant is whether a qualified and experienced doctor would have (should have) checked the position of the syringe in case of high risk treatment or not. This question had not been analysed by the courts although whether the doctor had made a mistake or not depends on the answer. The Supreme Court found that the District Court has to establish if the claimant would also have been injured if the defendant had not administered the anaesthetic or used analgin in the injection dilution. Furthermore, the District Court must find out if the damage would have occurred even if the position of the syringe had been checked before injecting the claimant with the dilution. When these questions receive a positive answer, the causal link between the actions of the doctor and the damage is absent. In case of a negative answer there is a causal link. If the injuries would have occurred either from a medical mistake or due to some other circumstances (e.g. his own medical condition), for which the doctor is not liable, the causal link between mistreatment and damage has to be assumed, i.e. the claimant does not have to prove that there is no other cause of the damage. If the injuries and damage were partly caused by mistreatment as well as by other circumstances for which the doctor is not liable, the defendant would still be liable, because he also caused the damage.
21
c) Commentary
The claimant found that the injuries caused to him were consequent upon the incorrect medical treatment performed by the doctor and thus the defendant had caused him damage. The defendant did not recognise the claim. The Supreme Court explained in its ruling that, in order to decide on the mistreatment, the actions of the doctor must be assessed according to the criteria of professional care. It has to be evaluated whether a qualified and experienced doctor in the same field of expertise would have acted in the same way or not. As LOA does not specifically regulate the professional care standard, it is important that the need already rooted in the jurisprudence to apply the professional care standard also be acknowledged by a higher court.
22
The court also directed attention to the importance of the causal link: in order to reach an accurate decision, the causal link between the actions of the doctor and the damage has to be assessed and established. Reasonably the court found that if the damage was caused by mistreatment as well as the medical state of the victim, it does not exempt the defendant from liability. In this case the compensation has to be reduced according to LOA § 139.
23
3. Riigikohus 31 May 2006, No. 3-2-1-161-05, (2006) RT III 23, 209: Defamation a) Brief Summary of the Facts
The defendant appeared in a television show stating the following which allegedly offended and defamed the claimant: “the claimant, coming to the meeting
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with lots of authorisation papers from apartment owners whom he represented, happened to be in the majority, ordered us to pay € 180,000 as a part payment; the claimant has no property, so he defended himself from possible risks” etc. The claimant is well-known locally, is the board member of eight apartment societies and the disclosure of untrue facts caused him moral damage which negatively affected his reputation amongst business partners and the members of apartment societies. The claimant had to justify himself after the television show and answer several questions by phone. The plaintiff claimed € 960 for moral damage and the rebuttal of the untrue and offending statements. The defendant argued the claim.
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The Harju County Court did not uphold the claim. The District Court of Tallinn partly overruled the decision and partly upheld the action with a new ruling. b) Judgment of the Court
26
The Supreme Court found that the part of the District Court decision which obliged the defendant to rebut his statements has to be overruled. The Supreme Court is of the opinion that defamation is, according to LOA, possible by passing undue judgment (LOA § 1046 subsec. 15) and also by unlawful disclosure of untrue facts (LOA § 1047 subsec. 2). The Supreme Court finds that the defendant’s statements are not only factual, consisting of facts as well as judgments. The disclosed facts have to be taken at face value, which means that, in case of a claim, the court has to assess what the defendant disclosed to the public according to a reasonable person. The defendant’s opinion of the disclosed information is of no relevance. In an action concerning the rebuttal of untrue statements, the court has to establish which of the statements are factual and which are judgments and the rebuttal of which statements the plaintiff claims.
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The characteristics of unlawfulness of factual and judgmental defamation are different. Defamation concerning facts comes foremost from the untrue facts that are disclosed and the discloser’s care in checking the facts. Defamation concerning the disclosure of judgments stems from its impropriety, the circumstances of disclosure and the weighing of private interests. Thus the scope of proof regarding these circumstances differs in quality.
5
LOA § 1047 subsec. 1 provides that the defamation of a person, inter alia by passing undue judgment, by the unjustified use of the name or image of the person, or by breaching the inviolability of the private life or another personal right of the person is unlawful unless otherwise provided by law. Upon the establishment of unlawfulness, the type of violation, the reason and motive for the violation and the gravity of the violation relative to the aim pursued thereby shall be taken into consideration. LOA § 1047 subsec. 2 provides that the violation of a personal right is not unlawful if the violation is justified considering other legal rights protected by law and the rights of third parties or public interests. In such case, unlawfulness shall be established based on the comparative assessment of different legal rights and interests protected by law.
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c) Commentary
The Supreme Court has tried to explain in this case questions concerning defamation. There seems to be confusion among Estonian lawyers in distinguishing judgments and factual statements. Thus the distinguishing is of great importance in order to implement justice correctly and to regulate the burden of proof between parties, because the characteristics of unlawfulness and the burden of proof are different for judgments and factual statements.
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In addition, the Supreme Court has noted that in a case where the information disclosed to the public should be assessed, it has to be established what the defendant disclosed to the public according to a reasonable person. It is not relevant what the discloser himself bore in mind.
29
4. Riigikohus 20 June 2006, No. 3-2-1-64-06, (2006) RT III 26, 241: Strict Liability, Exclusion a) Brief Summary of the Facts
The claimant and the victim concluded voluntary motor-vehicle insurance for a Toyota Land Cruiser 90. On 7 April 2003 the aggrieved party filed an application to receive insurance compensation as, on the same day, a rain pipe fell on the car from a block of flats in Tallinn. The claimant was compensated for the damage in the amount of 63,966 EEK (€ 4,090). According to LOA § 492 subsec. 1, a claim of a policyholder or the insured person for the compensation of damage against a third party shall be transferred to the insurer to the extent of the damage to be compensated by the insurer. The owners of the building are liable for the rain pipe falling, as they have disregarded their duty of care to repair and maintain the building. Unlawfully caused damage shall be compensated solidarily.
30
The defendant did not acknowledge the claim. The apartment association had concluded a maintenance contract, which means they have not infringed their duty of care. Moreover, the damage was not caused by the defendant’s fault. There was an exceptionally great amount of snowfall on 5 and 6 April 2003. As the clearing of the snow was disturbed all over the city due to the great volume of snow, the apartment owners were also not able to clear the snow away. The snowfall was a natural disaster and the destruction of rain pipes due to the large amount of snow on the roof was an extraordinary event which was caused by force majeure. The aggrieved party was not careful enough in avoiding the damage, although he should have foreseen the possibility of the occurrence of damage. The damaged vehicle was parked much closer to the building than the fire regulations allow.
31
The City Court upheld the claim partly and awarded the claimant € 2,900 payable by the defendant. The District Court left the judgment unchanged.
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b) Judgment of the Court
The Supreme Court did not change the District Court decision and the cassation was not satisfied. The Supreme Court noted that the courts had correctly
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established that the snowfall that caused the damage was not force majeure. The defendant could have foreseen the possibility of the snowfall and attached the rain pipes more securely to the building.
34
The actions of the aggrieved party, which exclude the application of LOA § 1059, logically meant that he intentionally damaged himself, because only this kind of action by the aggrieved party excludes the realisation of risk coming from the building as the major source of danger. The Supreme Court is of the opinion that the aggrieved party’s negligence (also gross negligence) does not eliminate the liability of the owner of the building according to LOA § 1059. However, the negligence of the aggrieved party may be the reason to reduce the amount of damages according to LOA § 139 subsec. 1 which states that if damage is caused in part by circumstances dependent on the injured party or due to a risk borne by the injured party, the amount of compensation for the damage shall be reduced to the extent that such circumstances or risk contributed to the damage. In this case the courts reduced the amount of damages on these grounds. c) Commentary
35
According to LOA § 1059, the owner of the land under a structure or a person who owns another real right on the basis of which the structure is created shall be liable for damage caused by the collapse of the structure and for damage caused by loosened parts of the structure which fall off, e.g. icicles, etc., unless the owner proves that the damage was caused by force majeure or an act of the victim.
36
The Supreme Court ruling on this matter is important, as court practice has to determine what kind of circumstances qualify as force majeure. What is more significant is that the Supreme Court gave an opinion about what the actions of the aggrieved party are that exclude liability, which is mentioned in LOA § 1059. Moreover, relevant to the application of no-fault or strict liability is the statement of the Supreme Court that only the intentional self-damaging of the aggrieved party, not his negligence or gross negligence, can exclude the realisation of risk characteristic to the major source of danger and so the liability of that person. 5. Riigikohus 14 November 2006, No. 3-2-1-118-06, (2006) RT III 42, 357: Concept of Fault and Obligation to Prove in Case of Damage Caused by Two Major Sources of Danger a) Brief Summary of the Facts
37
On 9 November 1996 there was a traffic accident. A Ford Escort, driven by the defendant, and a Ford Orion, driven by the claimant’s spouse, crashed into each other. Due to the accident the claimant’s spouse died and the car was completely destroyed. A dispute arose between the parties as to who caused the accident. The claimant brought an action against the other party claiming pecuniary damages in the amount of € 2,700 and non-pecuniary damages in
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the amount of € 12,800. The defendant did not acknowledge the claim. The County Court did not uphold the action. The District Court left most of the judgment unchanged. b) Judgment of the Court
According to the District Court, the claim could not be satisfied as the claimant did not prove that the accident which caused the damage was the defendant’s fault. The civil chamber of the Supreme Court agreed with the statement of appeal that, according to the above, the District Court did not divide the burden of proof correctly. The Supreme Court has on several occasions noted in its rulings that in case the damage is caused by two parties who are each regarded as a major source of danger, the fault of causing damage of each party shall be taken into account in counterclaims between the parties who caused the damage. If the traffic accident was caused by the wrongful actions of both parties considered a major source of danger, the degree of fault of both drivers has to be taken into account when determining civil liability. In this case one must bear in mind that the fault of the one who caused the accident has to be assumed. Thus, when both drivers broke the traffic rules, the District Court had to assume the fault of both drivers when solving the case.
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c) Commentary
Strict liability is liability regardless of fault according to LOA. However, when the damage has been caused by the concurrence of two major sources of danger, the fault of persons has to be taken into consideration according to the previous rulings of the Supreme Court. Until now it has been unclear whether or not in case of proving fault of persons under strict liability one should follow the general rule of civil proceedings, according to which the party has to prove the circumstances on which the claim is based, or the general rule of Estonian tort law, which states that the party has to prove that he is not culpable in order to be free of liability (LOA § 1050 subsec. 1). The Supreme Court solved the question raised in this case and so significantly developed the strict liability part in LOA.
39
C. LITERATURE 1. P. Varul/I. Kull/V. Kõve/M. Käerdi, Law of Obligations Act I. Commented Edition (Võlaõigusseadus I. Kommenteeritud väljaanne) (Juura Õigusteabe AS, Tallinn 2006) 725 pp. One of the most important publications in 2006 was the commentaries of the general part of the Law of Obligations Act. The Law of Obligations Act (in force from 1 July 2002) deals with the main rules of compensation of damage whose regulatory functions extend to all cases of compensation of damage (contractual and non-contractual liability). Commentaries include only the general part of the Law of Obligations Act (§§ 1–207) and the next parts (special part I and II) will be published in 2007–2008.
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41
The general rules concerning compensation for damage are regulated in the general part of LOA (§§ 127–140), such as the definition of fault (§ 104); the question of contributory negligence (§ 139); the manner of compensation for damage (§ 136); limits on compensation for damage (§ 140); compensation for non-pecuniary damage (§ 134) and rules on pre-contractual liability (§§ 14 and 15). There are some other rules in the general part of Law of Obligations Act which are important for delictual liability such as multiple tortfeasors (§§ 63– 75) and exemption clauses (§§ 42 par. 3 and 106).
42
The structure and system of the presentation of the material allows the reader to follow the main purpose of the regulation and content of the regulation not only from the point of view of the Estonian legal system but also gives information about the sources of the rule, developments in other European countries and how this concept was regulated during the socialist legal regime. Comments consist of many examples from other legal systems, a comparative analysis with the European model laws and proposals for application of the rule. In a way these commentaries are the only complete analysis of the theoretical standpoints of the Law of Obligations Act after the adaptation of the Act in 2002 which was based on all the important Supreme Court rulings until 2002 in the field of the law of obligations. These commentaries will considerably influence Estonian court practice in civil law matters in the future. 2. J. Lahe, Meaning of Fault with Regard to Liability for Damage Caused by the Unlawful Action of Another Person, Juridica International 2006, 136–145
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J. Lahe devotes his article to the concept of fault in cases of liability for another. The main question is whether, in situations where society considers it just and necessary to make a person liable for the damage caused by some other person, the fault of the person who caused the damage or the fault of the person who is liable for damage or the fault of both persons is the precondition for the liability. In case of liability for another person, there are primarily four liability situations: liability for the persons who are not capable of being held liable because of their age (minors) or because of disability and under-age persons who are capable of being held liable (14–18) and liability of the user of services for damage caused by the provider of services to third persons.
44
The author comes to the conclusion that in case of liability of parents for the delict of their under-age children, which does not depend on the fault of the parents, the rules of the European Civil Code (PEL) shall be applicable to reach equitable results6. PEL provides that a person is not accountable for the causation of damage if that person shows that there was no defective supervision of the person causing the damage (objective negligence). The same principle should also apply in cases of no-fault liability of those supervising persons who do not have full capacity. The author considers that the solution adapted 6
Non-Contractual Liability Arising out of Damage Caused to Another. PEL. Liab. Dam. Art. 3:104 par. 3. Available at: http://www.sgecc.net/index.php?subsite=subsite_4.
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in the Estonian Law of Obligations providing that in case of liability of the parents for the damage caused by their children who are capable of being held liable, the precondition of liability is fault of the parents (LOA § 1053 par. 2). J. Lahe offers the idea that in cases of the liability of the user of services, the solution shall be similar – the precondition of the liability of the user shall be the liability of the user of services. Even if the questions of liability for other persons have been under discussion among Estonian scholars and some articles have been published7, the comparative method used as well as the approaches and solutions offered by the author in this article are new.
45
3. E. Andresen, State Liability Without the Liability of State. Constitutional Problems Related to Individual Professional Liability of Estonian Notaries, Bailiffs and Sworn Translators, Juridica International 2006, 146–157 E. Andresen mainly deals with the problems of state liability, in this article with the liability of notaries, bailiffs and sworn translators. Notaries, bailiffs and sworn translators are independent public authorities who are individually liable for any damage occurring due to their fault when performing their official duties. Just like public servants, notaries, bailiffs and sworn translators perform public law functions, but the state is not liable for the damage caused by them. E. Andresen analyzes under what conditions the state may transfer its liability to the liability of natural persons and whether such a transfer is grounded in case of the professions listed above. The problem is that compulsory insurance does not cover the liability of notaries and bailiffs, but a natural person is often not able to perform the obligation to compensate for damage solely with his or her assets. Sworn translators have no compensation system for cases of personal liability for damage caused by non-performance of their obligations. In a state based on the rule of law, an injured person cannot be satisfied by knowing that his or her right to compensation has proven valid only on paper. The right to compensation for damage is applicable in Estonia as a fundamental right and such a right must be secured by all public authorities. The peculiarities of an administrative body should not affect the rights of the injured person. The author introduces the idea of replacing the personal liability system of officials with state liability without the need to change the whole system of the professions of notaries, bailiffs and sworn translators.
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4. K. Tamme, Delictual Liability of a Member of a Management Body of a Company in the Case of Abuse Associated with the Company (Äriühingu juhtorgani liikme deliktiline vastutus äriühinguga seotud kuritarvituste korral) Juridica 6, 2006, 396–404 K. Tamme has written an article about one of the most urgent problems in Estonian liability law which is the liability of the management body of a company. 7
T. Tampuu, Deliktiõiguslik vastutus teise isiku tekitatud kahju eest, Juridica 7, 2003, 464– 474.
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Despite the court practice and scholarly writings, the main concepts of liability of members of management bodies of companies are not clearly defined and decided yet.
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The author of the article starts with the analysis of the preconditions of the liability of managers, concentrating on the problems of protected rights. It is not uncommon to hear Estonian lawyers express the mistaken opinion that the regulation, proceeding from the Commercial Code, on the liability of a member of the management board is somehow outside the basis for other civil law liabilities. K. Tamme analyses in detail the problems of liability of managers who use their position for purposes not connected with the economic activities and aims of the company. The author expresses the opinion that, in case of acting in pursuit of purposes other than economic goals, the manager shall be liable personally for damage caused by unlawful activities. The position of the regulation of the liability of a member of a management board in the liability system of general civil law is also a matter for debate. At the beginning of the article, there is a brief analysis of the position of the liability of a member of a management board in the civil law liability system, in order to set the limits of the internal and external liabilities of a company, since the type of liability to be applied also depends on the nature of the violated obligation. In the main body of the article, there is an analysis primarily of the prerequisites for the delictual liability of members of a management board that could possibly be implemented in Estonia in case of abuses associated with companies, and where a member of the management board is personally liable to the creditor of the company for the implementation. The author covers only briefly the topic of adopting behaviour that is important from the standpoint of the liability of a member of the management body. In case of intentional cause of damage and attempts to escape from liability, it is reasonable to allow the use of all kinds of remedies and claims against the tortfeasor and especially in case of damage which is not connected with the economic activity of the company. This article is a very important source for both judges and practitioners in order to gain a broader understanding of the legal nature of liability of managers and its main principles.
VII. Finland Suvianna Hakalehto-Wainio
A. LEGISLATION 1. Tort Liability Act The most significant Finnish statute applying to liability in damages is the Tort Liability Act (412/1974: vahingonkorvauslaki). The Tort Liability Act applies both to tort liability and the quantum of damages. In contrast, it does not apply to contractual liability or damages or to liability provided in another act, unless otherwise provided.
1
A bill (509/2004) introducing changes to the provisions on compensation for personal injury, loss of maintenance and suffering came into force on 1 January 2006. The changes are described in Yearbooks 2001 and 2002.
2
The main task of the Supreme Court (Korkein oikeus, KKO) is to hand down precedents on points of law that are important for the whole legal system and in this way to give guidance for the application of the law. In 2006, the Supreme Court handed down 110 precedents, 8 of which dealt with tort law matters.
3
B. CASES 1. Supreme Court, 21 September 2006, KKO 2006:75: Tort Liability of the Joint Municipal Authority Due to Damage Caused by a False Decision a) Brief Summary of the Facts
The Director of the Health Care District, contravening the rules governing such matter, granted A a leave of absence which was shorter than that for which A had applied and without A’s consent. The government of the joint municipal authority overturned the decision and returned the application. The Director dismissed the application on 21 January 1994. At that time A had already been on a leave of absence since 1 January 1994. The Supreme Administrative Court overturned the decisions of the Director of the Health Care District and
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the government of the joint municipal authority in which they rejected A’s application for a leave of absence for the period from 1 January until 28 February 1994 and in which they stated that the office been annulled because A would have been absent from his public office for more than seven days without a reason.
5
The main question was if the joint municipal authority was liable in tort because of the illegal annulment of the office and because of the non-payment of A’s salary in the period from 1 March 1994 until 1 August 1997. Had the joint municipal authority acted negligently according to chap. 3, sec. 2 Tort Liability Act? Had A suffered damage because of the procedure of the joint municipal authority? A had claimed damages because he had not been paid his salary in the period from 1 March 1994 until 1 August 1997. According to A, he had been able to do his job in the private health sector in addition to his public office. For this reason the salary from the private sector could not be deducted from the salary that A had not been paid in the assessment of damages. According to the joint municipal authority, A would not have been able to work in the private sector while working in the public sector.
6
Because the joint municipal authority exercises public power, tort liability was assessed according to chap. 3, sec. 2 Tort Liability Act. According to this rule, liability arises only if the performance of the activity or task, in view of its nature and purpose, has not met the reasonable requirements set for it.
7
It was for the Supreme Court to decide if the joint municipal authority had acted carefully enough while dismissing the application and while stating that the office no longer existed when taking into consideration the nature and purpose of the matter. b) Judgment of the Court
8
The previous practice of the Supreme Court shows that, regarding the wrongfulness of judicial discretion, one must take into consideration the quality of the matter and the quality of the rules to be applied. The Supreme Court noted that the case concerned the right of the official to retain his public office.
9
According to the previous practice of the Supreme Court, the threshold of tort liability is lower if the rules that have been neglected or have been applied wrongly are clear. If the situation is more unclear or demands wider discretion, it will not be as easy to establish tort liability.
10
According to par. 34 of the official rules (rules considering that particular authority) of the joint municipal authority, granting a leave of absence as well as its duration are within the discretion of the authority. The application has to be dismissed if the leave of absence cannot be granted according to the period stated in the application unless the official agrees to a shorter leave of absence. According to par. 15, the office can be stated redundant if the official has been out of office without consent or an acceptable reason for more than seven days.
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A had not been asked if he were prepared to take a shorter leave of absence. Under these circumstances the application should have been dismissed because the partial approval was not possible according to the rules. The rules concerning the situation were clear. The Director had also acted against the legal principle according to which administrative decisions can be changed only if in favour of the applicant.
11
The government of the joint municipal authority had acted negligently by failing to correct the wrong. By stating that the office of A no longer existed clearly constituted wrongful conduct. On 1 March 1994 A had not been absent from his office for more than seven days.
12
An official has to be able to trust that the public authority for which he works acts according to the rules and principles regulating the activity when it makes decisions about the right to stay in office. According to the Supreme Court, the reasonable requirements set for decision-making had not been met.
13
Regarding the amount of damages, the Supreme Court held that A’s work in the private sector constituted a full-time job. Thus A could not have exercised his work duties in the private sector at the same time as working for the joint municipal authority. The Supreme Court did take into account the income earned in the private sector when assessing the amount of damages. The Supreme Court held that A had not suffered compensable damage as a consequence of the interruption of the office (virantoimitus in Finnish).
14
c) Commentary
According to the practice of the Supreme Court, false legal reasoning has to be especially incorrect before tort liability can be established. The Supreme Court has dismissed claims for damages if the rules that have been applied wrongly have been very much open to interpretation or if they have required difficult balancing. Stating tort liability has required a clear exceeding of discretion. In this case the rules had been clear. It seems that the Supreme Court wanted to confirm that, when these kinds of clear rules have been interpreted wrongly, the requirements of tort liability set in chap. 3, sec. 2 Tort Liability Act are met.
15
The Supreme Court referred to the protection of reliance concept which has gained significance in administrative law over the last few years. It can be regarded as one of the quality standards to be applied to the public administration and it might be appealed to more often when one suffers damage within the public administration.
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C. LITERATURE 1. Sampo Mielityinen, Vahingonkorvausoikeuden periaatteet (Edita, Helsinki 2006)
17
Sampo Mielityinen has written his doctoral thesis on the principles of tort law. The main objective is to articulate and justify the general principles of Finnish tort law: which legal principles should a Finnish judge regularly take into consideration when, e.g. interpreting a legal provision or a precedent applicable to a claim for damages? In the second place, in order to answer the aforementioned question, one must have a conception of how to argue for a certain principle: what kinds of argument are relevant in supporting a claim that a certain principle should be recognized as a legal principle?
18
In this study, legal principles are understood in a Hartian vein as general, broad, and explicitly value-laden legal norms. In this study, the requirement of institutional support is given a material or substantial interpretation. In order to have institutional support, a principle should justify legal rules. Thus, to evaluate a principle’s institutional support is first and foremost to engage in practical argumentation.
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A principle’s institutional support is strengthened when 1) the ruling required by an unambiguous legal rule is justified by the principle or 2) the facts to which a vague legal rule attaches importance are relevant in evaluating the justification of a decision from the principle’s point of view.
20
In order to be a legal principle, a principle should gain wide institutional support from legal rules which are important in practice and which have strong weight as the basis of a decision. If these requirements are not met, the moral rights and/or political goals expressed by the principle will not be realized in legal practice.
21
In this study, four general principles of Finnish tort law are articulated and justified. According to the first principle, if the damage results from exposing the injured party’s fundamental rights to excessive risks, the wrongdoer is liable for damages (the principle of excessive risks). The principle requires the compensation to be proportional to the excessive risks. The moral justification of the principle is based on a liberal idea of providing everyone with appropriate resources (primary goods) with which to form and realize their own conception of a good life.
22
According to the second principle, a natural person suffering grave personal injury is entitled to compensation (the principle of compensation for grave injuries). The moral justification of the principle stems from the liberal conception of primary goods. Grave personal injuries seriously disrupt the realization of one’s life plans. Therefore, the effects of the injuries should be mitigated.
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The third principle requires that the burdens of risky human activities are distributed to those who reap the benefits of the activity, ideally in proportion to
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the benefits (the principle of the fair distribution of harm). The moral justification of this principle is independent from, yet not contradictory with the justification of the aforementioned principles. The fourth principle is based on a reinterpretation of the notion of outcome responsibility. In this study outcome responsibility is interpreted as a consequentialist principle that attaches importance to the cultural or symbolic effects of the legal decisions. Tort law should express that a human being’s prima facie responsibility for a damage he or she has caused is proportional to his or her ability to foresee and avoid the damage (the principle of outcome responsibility). In practice, the principle, for example, supports liability for damages if the damage was somewhat foreseeable and the foreseeability is explicitly recognized in the reasoning of the court.
24
2. Eero Routamo/Pauli Ståhlberg/Juha Karhu, Suomen vahingonkorvausoikeus (Talentum, Helsinki 5th ed. 2006) The first edition of this traditional tort law monograph was published in 1977. This book includes a basic package of Finnish tort law and is probably the monograph of tort law most used in Finland among law students and legal professionals.
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The authors are among the most highly respected authorities in the field of tort law. Eero Routamo is Professor Emeritus in civil and commercial law at the University of Helsinki. Pauli Ståhlberg is the director of the Consumer Complaint Board. Juha Karhu is the Professor of civil law at the University of Lapland.
26
This volume focuses on non-contractual liability and the general principles of tort law, with the pride of place being given to the Tort Liability Act. The volume covers, for example, the following issues: the basic problems of tort law, history of tort law, negligence, scope of strict liability, vicarious liability, liability of employees, liability in the exercise of public authority, the requirement of causality, types of loss, contributory negligence and concept of damages.
27
Exceptionally voluminous case-law relevant to tort and damages is provided. The reader also profits from the list of tort law literature at the end of the book.
28
VIII. France Olivier Moréteau1
A. LEGISLATION 1. Project to Reform the Law of Obligations (Catala Project): One Project, Two Translations
1
The Avant-projet de réforme du droit des obligations et du droit de la prescription, Rapport à Monsieur Pascal Clément, Garde des Sceaux, Ministre de la Justice, 22 September 2005, was commented on in the Yearbook last year.2 No legislative action was taken in a period of important political elections on this abundantly discussed and commented project. Yet a strange event occurred, with the publication of a second translation from French into English.
2
In my presentation last year, I relied on the excellent translation by Alain Levasseur (Louisiana State University) and David Gruning (Loyola University, New Orleans), available on the website of the Association Henri Capitant des juristes de langue française. Pierre Catala, the chief drafter of the project, forgot that he had asked Michel Grimaldi and the Capitant colleagues to secure a translation in English. He also asked two English colleagues, John Cartwright and Simon Whittaker (Oxford University), to make a translation. This second translation now appears as the official translation. All those working in comparative tort law are invited to look at both translations and detect differences. They will first note that the Oxford translation is more complete than the Capitant one, as it translates, in addition to the draft provisions, all the commentaries made by the drafters.
3
It quickly appears that the Oxford translation contains many terms borrowed from the common law tradition. For instance, “responsabilité solidaire” is translated by “joint and several liability”. Clearly, the translators try to communicate the civil law to a common law audience, using common law terminology and phraseology. Our two Oxford friends are indeed experts at explaining French law to an English audience. 1
2
The author thanks Nizar Fadhlaoui for his research assistance and Jennifer Lane and Agustin Parise for their help in the editing process. O. Moréteau, France, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2005 (2006) no. 1 ff.
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On the other hand, the Capitant translation keeps away from using common law terms. It is based on a now bicentennial tradition of expressing the civil law in English in Louisiana, with language choices that may be familiar to lawyers in Scotland or South Africa. The words “solidary obligations” and “solidarity” are used. Civilians not reading French will feel more at home with this Capitant translation. Common law people may feel more at home with the Oxford translation, yet with the risk of confusing some concepts that may be different in both traditions.
4
With great respect for my esteemed Oxford colleagues, I am of the opinion that it is better for both civil law and common law jurists to use a translation that keeps closer to the legal culture of the language of origin. Canada, Louisiana, Scotland, South America and to some extent Israel have developed or contributed to the development of a legal terminology that enables us to express the civil law in English, without risk of distortion or misunderstanding of the underlying concepts. It is for the common law jurists to make the effort of understanding what solidarity means in a civil law context. Of course, there is nothing wrong in a class or in a book to explain that “solidarity” may come close to “joint and several liability”, but the use of the word solidarity forces the teacher or writer to explain to what extent the concepts are similar or different.
5
The drafting of uniform laws meant to apply both in civil law and common law jurisdictions is again a different story. Such laws may borrow from one tradition or the other, or may build up new concepts, like that of “auxiliaries” in chapter 6 (Liability for Others) of the Principles of European Tort Law.
6
This French misunderstanding, leading to duplication of work in an area where the human resources are scarce, may look like an irritating event, and it certainly is for those who made the effort of the first translation. I would rather hope that it turns out to be one of these fruitful mistakes, helping us to develop a better awareness of the difficulty of legal translation. As a consultant for the Canadian program of expressing the law in two languages, I learned that expressing the common law in French does not invite the same choices, whether you translate for French speakers living in a common law jurisdiction (such as the Acadians in New Brunswick) or French speakers familiar to the civil law.
7
Whenever one crosses not only the language boundary but also the legal system boundary, it is best to keep with the spirit of the system of origin, producing neologisms or keeping the untranslatable word in the language of origin wherever the context makes it possible. Louisiana and Quebec, two hybrid jurisdictions with a Civil Code, have a rich experience that may be beneficial for any jurist lost in translation.
8
2. Law no. 2006-406 of 5 April 2006 Relating (inter alia) to Product Liability Art. 2 of law no. 2006-406 of 5 April 2006 again modifies art. 1386-7 para. 1 of the Civil Code, as a second attempt to secure the compliance of French
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law to the Directive 85/374EC. This Directive had been enacted by a law no. 98-389 of 19 May 1998, introducing eighteen new articles in the Civil Code.3 Art. 1386-7 allowed the victim of a damage caused by a defective product to sue not only the producer but also the supplier of such product. According to para. 1, “A seller, a hirer, with the exception of a finance lessor or of a hirer similar to a finance lessor, or any other professional supplier is liable for the lack of safety of a product in the same conditions as a producer.” This rule spared the victim the duty of identifying the producer stipulated by the Directive, which limits the liability of the supplier to circumstances in which it has failed to make known the identity of the producer within a reasonable timescale. Under the French system, the supplier is automatically liable, unless it brings proceedings against the producer. This is because the claimant is in most instances more familiar with the seller or hirer than with the producer of the product concerned.
10
According to the European Court of Justice, this constituted incorrect implementation of the Directive by France,4 since the Directive stipulates that the supplier is only secondarily liable.5 Art. 1386-7 was consequently modified by law no. 2004-1343 of 9 December 2004, allowing the victim to sue the supplier or hirer only in those cases where the producer was unknown.6 The new action against France, initiated in April 2004, was nonetheless maintained, and the Advocate General requested the Court to sentence France to pay € 13,715 per day for non-compliance with the Court interpretation of the Directive.
11
The law of 5 April 2006 substitutes a new wording of art. 1386-7 para. 1, which now reads: “Where the producer cannot be identified, the seller, the hirer, with the exception of a finance lessor or of a hirer similar to a finance lessor, or any other professional supplier, is liable for the lack of safety of a product under the same conditions as a producer, unless he designates his own supplier or the producer, within three months of notice to him of the victim’s claim”. This phrasing is very similar to the text of the Directive. The only difference is that a three month period is substituted to the reasonable time limit, this in order to avoid useless litigation. The new text is less protective of victims. There will be more situations where the defendant will be outside France. The French concept of chain of contracts, very protective of the end purchaser and allowing the supplier to sue the producer at the other end of the chain, eventually broke under the heavy hammering of the Commission and the European Court of Justice. 3 4 5
6
Art. 1386-1 to 1386-18. ECJ 25 April 2002 – C-52/00, [2002] ECR I-3827. Art. 3 (3) of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, OJ L 210, 7.8.1985, 29–33. M. Cannarsa et al., France, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2004 (2005) no. 20 ff., Art. 1386-7 para. 1 then reads: “A seller, a hirer, with the exception of a finance lessor or of a hirer similar to a finance lessor, or any other professional supplier is liable for the lack of safety of a product under the same conditions as a producer only where the identity of the producer is not known.”
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B. CASES 1. Cass. 1st Civ., 24 January 2006, JCP 2006, II, 10062, Note A. Gouttenoire and S. Porchy-Simon, RTDCiv 2006, 264, Observations J.P. Marguénaud: Judges v. Legislators, the Final Word on Wrongful Life? a) Brief Summary of the Facts
On 11 January 1996, Ms. Y gave birth to a child with very serious malformations of the spine. The gynaecologist had done a number of echographies without detecting the malformations. The parents sued the gynaecologist, claiming compensation of both non-pecuniary damage and damage resulting for the extra cost generated by the severe handicap of the child for the duration of her life. They argued that the echographies should have permitted the physician to identify the malformations, allowing the parents to envisage terminating the pregnancy.
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b) Judgment of the Court
The lower court denied compensation of the consequences of the handicap, applying the law of 4 March 2002, stating that nobody may claim compensation of damage due to the only fact of being born, adding that parents may be compensated for their own detriment, yet not including the expenses generated by the handicap of the child, such compensation being based not on liability but on national solidarity. This law is immediately applicable, also to previous facts not judicially decided prior to its enactment.
13
The Court of Cassation (the highest court for private law disputes) reversed the judgment, citing art. 1 of the first Protocol to the European Convention on Human Rights, protecting property interests. According to the court, such an interest did exist prior to the 2002 law, on the basis of the jurisprudence then applicable. According to the court, the national solidarity system created in 2002 allows for compensation far below the full compensation possible under the previous jurisprudence, thus defeating a legitimate expectation.
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c) Commentary
On 14 February 1997, the Council of State (the highest administrative court) allowed parents of a child born with a severe handicap not detected due to medical negligence to obtain compensation of the damage generated by the high cost of caring for a disabled child.7 This applied to a negligence committed in a public hospital or by medical staff working for the public sector. On 17 November 2000, in the very famous Perruche case, the Plenary Assembly of the Court of Cassation allowed a similar claim, this time on behalf of the child, recognizing that a severely handicapped child had a claim in his own 7
Quarez case, CE, 14 February 1997, Juris Classeur Periodique (JCP) 1997, II, 22828, note J. Moreau.
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right.8 This came to be the most debated case in French legal history. The Court of Cassation acted in a humane way, insisting on clear negligence and taking into account the fact that the social treatment of severe handicap was then very defective in France. Its jurisprudence applied to negligence cases which occurred in the private sector. On 4 March 2002, a new law stated that nobody may claim compensation of damage due to the only fact of one’s birth, adding that parents may be compensated for their own detriment, yet not including the expenses generated by the handicap of the child. Such compensation may no longer be based on liability but on national solidarity. A system was organized, providing for minimal compensation.9
16
At this point, a traditional legal analysis of causation prevailed: the damage resulting from the severe handicap is not caused by the medical negligence but is due to a pre-existing condition of the child or the mother. Allowing compensation to the child somehow means the recognition to the child of a right not to be born: in Perruche, the mother had clearly stated at the time of the tests of her intention to terminate the pregnancy if a risk to give birth to a handicapped child existed.
17
The national solidarity system created in 2002 proved to be defective and was improved three years later.10 However, in two cases decided on 6 October 2005 (Draon v. France and Maurice v. France), the European Court of Human Rights ruled that when enacting a legislative provision of immediate application, France deprived some people of existing property rights protected by Protocol number 1 to the Convention.11 The fact that “possessions”, the term used in the English version (the French refers to “les biens”) includes debts is not disputed and the point has been clarified in previous cases, cited in the judgment of the Court. It could therefore conclude that legitimate expectations were hereby defeated, as previous case law clearly recognized the existence of a claim for damage resulting from severe handicap. In the opinion of the Court, there was no evidence that the deprivation of such right was justified by the general interest.
18
Interestingly, the European Court openly recognizes the law-making function of judges, the previous law being what it was on the basis of the jurisprudence of both the Court of Cassation and the Council of State. The Court of Cassation does the same in the present judgment.
19
Does it mean that the law of 2002 is defeated by the will of both the European and national judges? This is not a return to the previous jurisprudence, the 8
9 10 11
Perruche case, Cass. Plen. Ass., 17 November 2000, JCP 2000 II, 10438, conclusions J. SainteRose, report P. Sargos, note F. Chabas. Law No. 2002-303 of 4 March 2002, now art. L. 114-5 Code de l’action sociale et familiale. Law No. 2005-102 of 11 February 2005. Art. 1 of the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Paris on 20 March 1952, reads: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
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new law being discarded for pending cases only. The new law is criticised on account of its retroactivity, which violates existing rights. This will be a short lived revenge for the two French highest courts,12 with legislation having the final word. These cases may not generate a boom in medical malpractice litigation in cases of wrongful birth. The medical insurance and reinsurance business have no reason to worry. In electing for national solidarity rather than liability, France clearly says that no life is ever wrongful. 2. Cass. 1st Civ., 27 September 2005, D. 2006, 485, Note T. Hassler, D. 2006, 768, Note G. Lécuyer, RTDCiv 2006, 126, Observations P. Jourdain: Freedom of Expression, the Clausula Generalis of Art. 1382 Evicted? a) Brief Summary of the Facts
The first episode of a fictional story was published in the Literary Supplement of Le Figaro. Based on a true event, it told how the members of a family mysteriously disappeared. A parent of one of the protagonists, whose body had been found, complained that the article caused her emotional distress and was a fault according to art. 1382 of the Civil Code, obliging anyone causing damage by fault to give compensation.
20
b) Judgment of the Court
The Court of Appeal found for the plaintiff and awarded her damages. The judgment was reversed. The Court of Cassation stated in clear and general terms that no abuse of freedom of expression may be actionable on the basis of art. 1382 of the Civil Code. No damages were therefore to be awarded.
21
c) Commentary
Freedom of the press is regulated by a law of 29 July 1881. In order to protect the freedom of the press, this law, as interpreted by the jurisprudence, places a number of hurdles, including procedural ones, on the plaintiff’s way to possible compensation. In the 1990s, plaintiffs tried to make use of art. 1382 in order to circumvent the excessive formalism of the law of 1881. On 10 July 2000, the Plenary Assembly of the Court of Cassation ruled that this was no longer possible in all cases governed by the law of 1881.13 This ruling left room for actions based on art. 1382 in those cases only where the law of 1881 had no room to apply. Defamation is covered by the law of 1881, and such a case is not easy to fight. A defamation case may not be fought on the basis of art. 1382. However, the consequence of a mistake by a journalist in checking the information may not be covered by the law of 1881. It could still be regarded as a fault covered by the general clause in art. 1382 after the ruling of 2000. This may no longer be possible according to the present case, where the 1st Civil Chamber of the 12
13
See also CE, 24 February 2006, JCP 2006, II, 10062, commented together with the present case by A. Gouttenoire and S. Porchy-Simon. Cass. Plen. Ass,, 12 July 2000, JCP 2000, II, 10439, Revue Trimestrielle de Droit Civil (RTDCiv) 2000, 845, observations P. Jourdain.
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Court of Cassation seems to exclude all application of the article, with no reference to the law of 1881 on freedom of the press, as if art. 1382 were purely and simply outlawed in all freedom of expression cases!
23
If this were the case,14 the law would no doubt look clearer than it does. Yet, such a solution would be too radical, ignoring a basic rule in a civil law jurisdiction: is art. 1382 no longer a general rule meant to apply as a default rule wherever no specific provision finds room for application? This would be a break with the civil law tradition. Gaps would be generated, like those existing in common law jurisdictions, where victims of a wrong sometimes find no remedy! This cannot be regarded as the final word in the French freedom of the press saga, but at most as an obscure episode in the French civil law.
24
Let us trust that in the future some plaintiffs will keep claiming damages on the basis of art. 1382 for negligence of journalists making mistakes in checking the information and causing damage by publishing something that is not true, a situation not covered by the law of 1881 on the press. Can such a case of negligence be described as “an abuse of freedom of expression”? The word “abuse” is quite strong, implying intention or at least gross negligence. The day when the Court of Cassation will ever manage to make freedom of expression completely “Civil Code proof”, we will conclude that France is no longer a civil law jurisdiction, or at least is moving back to what Merryman once described as the “French deviation”.15 3. Cass. Plen. Ass., 14 April 2006, D. 2006, 1577, Note P. Jourdain: Updating Force Majeure, a Missed Opportunity? a) Brief Summary of the Facts
25
The dead body of a woman was found in a Paris underground station, between the platform and the rails. No witness was found and the investigation led to no conclusion as to the circumstances of the accident. The victim’s husband sued the transportation company in his own name and on behalf of two minor children. The action was based on art. 1384 para. 1 of the Civil Code as interpreted by French courts, making the guardian of a thing strictly liable for all damage caused by such thing. The claim was dismissed: the only possible explanation of the accident was the voluntary conduct of the victim. The victim was at fault, thus exonerating the transportation company. In addition, this fault was the exclusive cause of the damage, and happened to be unforeseeable and unavoidable. The plaintiff appealed and the 1st Civil Chamber of the Court of Cassation decided, given the importance of the case, to defer to the Plenary Assembly. b) Judgment of the Court
26
The appeal was dismissed and the challenged decision of the Court of Appeal was upheld. According to the Plenary Assembly, “the victim’s fault fully 14 15
See the note on the case by T. Hassler. See, J.H. Merryman, The French Deviation, American Journal of Comparative Law (Am. J. Comp. L.) 44 (1996) 109.
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exonerates the guardian only where presenting the characters of a force majeure event; this requirement is satisfied where this fault may be described, at the time of the accident, as unforeseeable and unavoidable”. According to the Plenary Assembly, the challenged decision had properly checked that the transportation company had complied with all security requirements and that the victim’s action was not predictable. c) Commentary
This case and another one decided on the same day offered the Plenary Assembly of the Court of Cassation, the highest judicial authority for private law cases, an opportunity to clarify the law relating to exoneration by force majeure in the context of tort liability (the present case) and contract liability (the other case).16 Both cases confirm that force majeure results in a combination of unforeseeability and unavoidability. This is a most classical answer. Unforeseeability is to be appreciated at the time of the accident (the present case) or at the time of contracting (the other case). However, the Plenary Assembly leaves the following question in a dark corner: may force majeure be successfully pleaded in cases where the damage is unavoidable and yet foreseeable? The Court of Cassation remains divided on this issue. In a line of cases starting in 1994,17 the 1st Civil Chamber ruled that unforeseeability is no longer requested in those situations where it is clear that no step whatsoever could have been taken to avoid the harmful consequences of the event. It declared, in 2002, that the unavoidability of the event is in itself sufficient to characterise force majeure.18 Knowing that the 2nd Civil Chamber still complies with the traditional view that unforeseeability and unavoidability are both requested, one may regret that the Plenary Assembly made no ruling on the point.19
27
There is however a point that has been most usefully clarified by the Plenary Assembly. When discussing the full exoneration of the defendant by the victim’s fault in strict liability cases (those based on art. 1384 para. 1), some courts (like the Court of Appeal of Paris in the present case) request that such fault should also be the exclusive cause of the damage. The Plenary Assembly of the Court of Cassation eliminates this additional requirement. Following the conclusions of the Advocate General and the Report of the leading judge, the court insists that the full exoneration stems from the unforeseeable and unavoidable character of the victim’s fault, leaving aside the questionable notion of exclusive cause.
28
16
17 18 19
The two cases are published and commented together by P. Jourdain. In the other case, the Plenary Assembly ruled that the disease of the party owing a contractual obligation, unforeseeable at the time of contracting and preventing any performance, is force majeure. See D. Noguéro, La maladie du débiteur cas de force majeure, Recueil Dalloz (D.) 2006, 1566. Cass. 1st Civ., 9 March 1994, Bull. Civ. I, no. 91; RTDCiv 1994, 871, obs. P. Jourdain. Cass. 1st Civ., 6 November 2002, Bull. Civ. I, no. 258; RTDCiv 2003, 301, obs. P. Jourdain. See the cases cited by P. Jourdain in the note to the present case, at fn. 11. In fn. 13, 14 and 15 and in the text above, he cites cases of all other Chambers of the Court of Cassation adopting the position of the 1st Civil Chamber.
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29
As is usually the case with Court of Cassation rulings, clarification is never complete. May one expect full clarification in brief statements of three lines, not followed by judicial argument? Like the Oracle of Delphi, the French highest courts keep uttering pronouncements with some striking words surrounded with obscure fumes, hiding areas of uncertainty where the court may move forward or retreat, at its discretion, in forthcoming cases. In his comment to the present case, Patrice Jourdain regrets a missed opportunity of updating the definition of force majeure, citing some talented doctrinal attempts.20 One may sympathize with modern definitions, including the one proposed in the Catala Project.21 However, if one may expect from supreme courts the clarification of the ingredients of legal concepts, the task does not necessarily belong to the judiciary to give full definitions.
30
Is it reasonable to expect much juridical refinement in the Court of Cassation jurisprudence? Three months after the present case, its 2nd Civil Chamber (the most demanding of all six chambers in admitting a force majeure case, as pointed out in no. 27 above) denied the existence of force majeure in the following situation.22 A nineteen-year-old man jumped off the train as he wanted to step off at some local station whilst travelling on a non-stop Paris-bound train. He forced the sealed lever near the door, thus causing a siren to sound and releasing the automatic blockage system which was designed by the SNCF (the national rail company) to secure passengers when trains are in motion. He opened the door and jumped, as the train was travelling at a speed of 160 km per hour. He did not survive his foolish action. The Court of Cassation was not convinced that this was an unforeseeable and unavoidable event. The judgment of the Court of Appeal of Rouen was reversed, thus opening the way to the victim’s family to compensation.23
31
This case was decided on the basis of art. 1384 para. 1: the passenger was travelling without a ticket and contractual liability was therefore excluded. This leaves the commentator speechless and yet with a number of questions. Is the French national rail carrier expected to place one agent by each door of every single train carriage, foreseeing that passengers, including those not paying the fare, may not agree with the stops planned on the trip? Is it expected to allow such passengers to stop wherever they wish? Is it bound, with the money paid by honest passengers and, why not, additional public money, to finance the engineering of automated systems responding adequately to the least predictable conduct of people not abiding to the laws? This judgment is hard to reconcile 20
21
22 23
P.A. Antonmattéi, Contribution à l’étude de la force majeure (1992), promoting the criterion of unavoidability. See draft art. 1349 para. 3, here in the Capitant translation: “Force majeure is an unavoidable event that the actor could not foresee or whose effects one could not avoid through appropriate measures”. Cass. 2nd Civ., 13 July 2006, JCP 2006, 1735, note F. Terré. Compare with Cass. 2nd Civ., 27 February 2003, Bull. Civ., II, no. 45, commented in F. Lafay/O. Moréteau/C. Pellerin-Rugliano, France, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2003 (2004) no. 46 ff., where the same Chamber of the Court of Cassation denied the existence of force majeure in a case where a lady got off the train as it was leaving the platform. She had accompanied her mother on the train and did not follow the advice of her husband who had stayed on the platform, urging her to stay on the train.
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with the Plenary Assembly ruling but there is some consoling news: French trains are clean and comfortable, they travel fast or very fast (300 km per hour in the case of the TGVs) and are usually on time, and a minimal service is soon due to reduce the adverse impact of sometimes unpredictable strikes. 4. Cass. Plen. Ass., 6 October 2006, D. 2006, 2825, Note G. Viney, JCP 2006, II, 10181, Report A. Gariazzo, Note M. Billiau: Tort Action by a Third Party Based on the Non-Performance of a Contractual Obligation a) Brief Summary of the Facts
A commercial building was rented under a lease. The lessee did not occupy the building. It charged another company to manage its business (“gérance de fonds de commerce”) in the rented premises. The lessor had not been informed of the contract between the lessee and the managing company, which was not a party to the lease. The managing company complained about the defective maintenance of the building: among other things, the main gate was obstructed; the lifts did not operate, preventing any normal commercial use of the building. They sued the lessor, using référé proceedings, applying for an interim injunction ordering him to put the building back in operating condition, and claiming for interim damages in addition.
32
b) Judgment of the Court
The lower judges found for the plaintiffs and the Court of Appeal of Paris granted the injunction and ordered the payment of damages. The lessor appealed to the Court of Cassation, arguing that no contractual liability stemmed from the lease to the benefit of a third party, especially in a case where the lessee did not inform the lessor of the entry in possession of a new occupier. According to the lessor, the third party must prove the existence of a fault independent of the contractual relation. The appeal was dismissed. The Plenary Assembly of the Court of Cassation allowed the managing company, a third party to the lease, to sue the lessor in tort. The lessor did not perform his contractual duties to the lessee and this was a fault causing damage to the plaintiff, a third party to the lease. The Court declared: “a third party to a contract may sue, on the basis of tort liability, for non-performance of a contractual obligation, wherever such non-performance caused damage to the third party”.
33
c) Commentary
This has been a tricky question, dividing judges and scholars for more than a century and generating a flow of cases.24 The possible situations are manifold, which is not surprising in a system inflating the concept of contract and stretching contract actions to cover what would be in other systems tort situations.25 A 24 25
See G. Viney, Introduction à la responsabilité (2nd ed. 1995) no. 210 ff. O. Moréteau, Revisiting the Grey Zone between Contract and Tort: The Role of Estoppel and Reliance, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2004 (2005) 60 ff. at no. 10 ff.
34
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typical example is the action by dependents of the victim of an accident in the course of a contractual transportation. Such victims are described as “victims par ricochet”. They are third parties to the contract, but are allowed to claim compensation of their own damage when the passenger dies or suffers physical injury. Another typical situation, yet with many possible variations, is where the third party complains about the defect of a thing, movable or immovable, and sues a supplier or the builder of such thing. The damage may be caused by the activity of the builder, or by a defect of a thing, or the ill conception of such thing, or the non-performance of services promised by a contractor, an agent, a lessor. To add to the complexity of such cases, the third party may be a total stranger, having no contractual relation with anyone, or a subcontractor, a tenant under a sub-lease or the owner in the case of a subcontracting agreement. Given the variety of situations, one cannot but be impressed by the French sense of generality, aspiring for a single solution.
35
Let us cite again the leading statement or “attendu de principe” of the Plenary Assembly: “a third party to a contract may sue, on the basis of tort liability, for non-performance of a contractual obligation, wherever such non-performance caused damage to the third party”. One may easily accept this rule in all cases where the contractual obligation in question is not a “strictly contractual obligation”, but an obligation reflecting a general rule of conduct, transplanted into the contract by the effect of a jurisprudence favouring contractual liability. This is typically the case of the “obligation de sécurité”, obliging the carrier to transport passengers safely to the point of destination, or obliging sellers or suppliers to deliver goods free of defects susceptible of harming the person using the goods according to their normal purpose. Many legal systems if not most (some indeed follow the French model) would be willing to treat such liability as tort liability in the first place. The solution must be approved for the “victims par ricochet”, even if the present commentator would favour a return to a pure tort liability in all these cases, both for the contractual party and the third party, for the sake of clarity and simplicity.
36
Things may look different when we consider obligations that may be characterised as “strictly contractual obligations”, stemming from a contractual promise rather than a general rule of conduct. The obligation to keep a building in a good state of repair, such as in the present case, may be twofold. It is a general duty when we consider the interest of people passing by, who may be injured by the fall of a tile, stone or chimney pot. Such accidents are covered by tort liability, on the basis of art. 1386 of the Civil Code. However, when it comes to the promise by a lessor to keep a place in such a state so that the lessee may live in the premises or may conduct a business therein, the obligation is purely contractual. The principle of privity of contract should apply.26 The original lessee might have refrained from enforcing such promise, for instance regarding the restricted access to the building, in order to avoid an increase of the rent. Why should we allow the newcomer, unknown to the lessor, to ride on obligations promised to an unfaithful lessee hereby trying to benefit unduly 26
“Effet relatif du contrat”, see art. 1165 of the French Civil Code.
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from the situation? If the lessee wants to substitute someone else in the conduct of his business, the scenario in the present case, agency or subrogation may be the proper action. In her comment to the present case, Professor Viney makes two strong arguments. First, she is happy to see the Plenary Assembly move away from a distinction between strictly contractual obligations and obligations originating in a general rule of conduct, a distinction she once favoured.27 Secondly, she blames the Plenary Assembly for opting for a tort liability regime, thinking that it may open to the third party broader rights than the contractual party had, by-passing limitation or exclusion clauses and benefiting from more generous limitation of action.
37
On the first point, one cannot but agree with Professor Viney that the distinction between obligations that are strictly contractual and others that are more general is not an easy one to operate. Many useful distinctions are difficult to implement in practice. However, abandoning the distinction may have overreaching consequences. On the second point, one may also agree that stretching the contractual regime can be an appropriate answer. However, this solution is only appropriate in the case of strictly contractual obligations, where the promisor has agreed to extend the benefit to a third party such as in cases of stipulation “pour autrui” or to the benefit of a third party.
38
On the tort side of things, Professor Viney avoids the problem of seeing third party victims hindered by a limitation clause: such a party should nevertheless be allowed to sue in tort, but only in those cases where an independent cause of action may stand on its own, without reference to the contract. This is precisely the solution worked out in the Catala Project, in the draft art. 1342 of the Civil Code.28 When a failure to perform a contractual obligation is the direct cause of harm to a third person, the latter may seek compensation from the debtor under the contractual liability regime, with all the limitations imposed by this regime. The third person may also seek compensation on the basis of extra-contractual liability, provided he proves that the conditions for such an action are open in the present case.29
39
One cannot but approve the solution proposed by both Professor Viney and the Catala Project as leading to the proper solution in all those situations where one is dealing with what may be regarded as a general duty, yet with the hope that this may lead, in the long term, proper tort actions to retreat from the
40
27 28
29
Viney (fn. 24) no. 215. Para. 1: “When a failure to fulfil a contractual obligation is the direct cause of harm to a third person, the latter may seek compensation from the debtor under articles 1362 through 1366. In that case, the third person is subject to the limits and conditions affecting the creditor seeking reparation of his own harm.” Para. 2: “The third person may also seek compensation on the basis of extra-contractual liability, provided he proves one of the constitutive elements set out in articles 1352 through 1362.” See, for more critical comments, C. Hécart, L’article 1342 de l’avant-projet Catala: quelle cohérence? D. 2006, 2268 ff.
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contractual playfield. However, with great respect, allowing third parties to benefit from purely contractual promises without necessarily paying the price for it or getting the agreement of the party held liable seems to be a major step in a wrong direction. It does not lead to a clarification of the law of obligations and might be a step away from the harmonisation efforts undertaken at the European and international levels.30
41
Does this mean that the plaintiff company, in the present case, should have been deprived of any action against the lessor? They were called to manage the business of the lessee (“gérance de fonds de commerce”). As managers, they could be regarded as the lessee’s agent, suing the lessor on behalf of the lessee and on the basis of the lease. Such reasoning avoids the detour of a tort action. On the other hand, wherever the plaintiff appears to be a true third party, it is really difficult and probably going too far to say that the non-performance of a strictly contractual obligation promised to someone else is in itself a fault, opening a claim in compensation on the basis of art. 1382 of the Civil Code to whatever third party claiming to suffer a damage (a pure economic loss, and possibly a benefit, in the present case) as a consequence of such nonperformance. But, as anyone following the developments of French jurisprudence should know, the French Court of Cassation often goes too far, led by the revolutionary spirit of the French Republic, reaching far beyond the letter of the Code. Any change in the Civil Code following the Catala Project would at least minimise this new French deviation, in subjecting the action of the third party to the contractual regime. 5. CA Lyon, 19 January 2006, D. 2006, 1516, Note A. Paulin: Tort Liability of Employees and Unintentional Offences a) Brief Summary of the Facts
42
The managing director of a company excercising a polluting activity was found guilty, following the violation by the enterprise of some environmental regulation. He was in addition condemned to compensate the victims, following their civil action before the lower criminal court. The judgment was affirmed by the Court of Appeal of Grenoble. The accused appealed to the Court of Cassation, which quashed the part of the judgment relating to tort liability. The case was remanded to the Court of Appeal of Lyon for final adjudication. b) Judgment of the Court
43
The Court of Appeal of Lyon held that, wherever an employee acting within the scope of his employment as defined by the employer is found guilty of an unintentional criminal offence, such employee may not be found liable in tort to third parties. Since the general director was an employee having acted that way, he could not be held liable.
30
Though, in the author’s view, such efforts tend to neglect the relationship between tort and contract actions: Moréteau (fn. 25) no. 4 ff.
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c) Commentary
On 25 February 2000, in the Costedoat case, the Plenary Assembly of the Court of Cassation held that an employee acting within the scope of his employment as defined by the employer is not liable to third parties.31 The ordinary faults committed by employees are to be regarded as simple risks for the enterprise. The employer must support the consequences of such risks. However, this causes the victim to bear the risk of the employer’s insolvency. The Costedoat case was heavily criticized.32 The Catala Project makes provision to avoid such a shift of the risk of insolvency.33 Employees and company directors are therefore treated the same way. Directors, when not subordinated by a contract of employment, incur no personal liability unless their fault may be detached (“faute détachable”).
44
The Criminal Chamber of the Court of Cassation applied Costedoat in a case where the employee’s fault was an intentional criminal offence,34 causing the Plenary Assembly to react and clearly exclude intentional criminal offences from the scope of the Costedoat solution.35 This seems to leave unintentional criminal faults within the ambit of the Costedoat immunity.
45
The present case shows that where a company director or a managing director is, at the same time, a company employee, he benefits from a large immunity as long as he acted within the scope of his employment. This may be the case where there is a negligent or intentional violation of environmental regulations, causing dangerous pollution and several people to suffer severe harm. Of course the director will be found guilty, but no individual liability will bear on him if there was no intention to harm, except maybe if the company becomes insolvent, if the Catala Project ever becomes the law.
46
When does a criminal offence become intentional? Intention is a vague, subjective, inconvenient concept. Prof. Mouly recommends substituting the concept of inexcusable fault, which may cover unacceptable lack of care.36 He cites a case decided in March 2006 by the Criminal Chamber of the Court of Cassation, where there was intentional conduct in violating some safety regulations, but no intention to harm the victims.37 The employee was made liable to the victims, indicating that the shift to a new paradigm is already taking place. This concept of “faute inexcusable” is well known in French law. It is defined objectively and finds its place between intentional fault and gross negligence.
47
31
32
33
34 35
36 37
Cass. Plen. Ass., 25 February 2000, D. 2000, Jur. 673, note P. Brun; RTDCiv 2000, 582, observations P. Jourdain. J. Mouly, Quelle faute pour la responsabilité civile du salarié? D. 2006, 2756 ff., cites Marc Billiau, describing Costedoat as a “coup d’état judiciaire”. According to draft art. 1359-1, victims may sue the employee whenever the employer may not face his obligations. Cass. Crim., 23 January 2001, Bull. Crim. No. 21. Cass. Plen. Ass., 14 December 2001, Bull. Crim. No. 17, D. 2002, 1230, note J. Julien. See O. Massot, France, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2001 (2002) no. 93. Mouly, D. 2006, no. 20 ff. Cass. Crim., 28 March 2006, JCP S 2006, I, 1448, note J.F. Césaro.
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Life and health on the workplace and around dangerous plants is largely in the hands of those who have to implement more and more stringent regulations and at the same time satisfy the shareholders with promising dividends. It is socially dangerous to make them immune from liability for inexcusable faults. Without dreaming that French law will ever move back to the solution advocated by the drafters of the Principles of European Tort Law,38 it would be comforting to see it make at least a small step in this direction.
C. LITERATURE 1. Mathilde Boutonnet, Le principe de précaution en droit de la responsabilité civile (LGDJ Bibliothèque de droit privé, 2005)
48
This may be the first comprehensive study in France of the precautionary principle and its impact on civil liability, including broad philosophical and scientific perspectives, as well as an overview of recent changes in the definition of fault and damage. 2. Philippe Brun, Responsabilité civile extracontractuelle (Litec, 2005)
49
With this intriguing title, the book (546 pages) deals with the law of tort, recognising the existence of a law of contractual liability and explaining that due to the multiplication of compensation regimes, the traditional terminology (“responsabilité délictuelle et quasi délictuelle”) is no longer suitable. Reflecting on the evolution of this part of the law, Philippe Brun shows how the concept of liability has been distorted. He denies the theories of Starck (“théorie de la garantie”) and takes us back to a much more classical approach, grounding civil liability on personal conduct and fault. He regrets the confusion of civil liability with multiple specific regimes aiming at compensation, expressing the concern that contemporary developments may lead people to behave in a less responsible way. Philippe Brun, Professor at the Université de Savoie (Chambéry), wrote the French Report in European Tort Law 2002. His book offers a solid and well constructed study of French tort law, including the general and the most important specific regimes. The style is clear and lively. This is the work of a master, to remain at all times open on the desk of scholars working in the field. 3. Michel Cannarsa, La responsabilité du fait des produits défectueux. Etude comparative (Giuffrè, 2005)
50
In this 560-page volume including a foreword by the author of this report, Michel Cannarsa offers a large overview of the evolution of product liability in Europe and in the United States.39 This is the work of a most promising comparatist, who defended an earlier version of this book to obtain a double doctorate from the Université Jean Moulin Lyon 3 and the Università degli 38 39
See the Comments under art. 6:102, 116 (no. 3–4). See also the excellent book of J.S. Borghetti, La responsabilité du fait des produits: étude de droit comparé (2004) with a foreword by G. Viney.
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Studi di Torino. It shows how foreign influences may shape national laws and the harmonisation process. It also makes it clear that despite an ambitious directive and a sometimes overactive European Court of Justice, harmonisation is not always completely effective. The focus is on the American, English, French and Italian laws, all national systems that the author masters perfectly in addition to European Union law. Michel Cannarsa has participated in the past to the French Report in this Yearbook series as well as in other ECTIL and international projects and it is hoped that he will continue his first class scholarship in the field of comparative torts. 4. Philippe Pedrot (ed.), Traçabilité et responsabilité (Economica, 2003) Both individuals and products may be traced, in order to inform the public and help solve liability disputes. Traceability is a largely used technique, also invading the banking and medical fields, generating conflicts with the need to protect privacy. This 323-page volume gathers a number of articles covering all aspects of traceability and its links with civil liability, offering a very comprehensive study.
51
5. Xavier Pradel, Le préjudice dans le droit civil de la responsabilité (LGDJ Bibliothèque de droit privé, 2004) This may look like a very classical topic but this is one of the most complex concepts of tort law, featuring a number of problems that are not satisfactorily solved in French law, such as the assessment of personal injury. Xavier Pradel deals first with “le préjudice indemnisable”, a legal concept, distinguishing pecuniary and non-pecuniary damage, offering a carefully crafted analysis of both. The second part of the book focuses on the “préjudice corporel” or personal injury, offering a rich contribution to this area of the law. The author favours a strong protection, based on insurance and compensation funds, also anticipating some proposals of the Catala Project. This first class doctoral thesis, now an impressive volume of 528 pages, is also open to comparative overviews, with a good use of Canadian sources.
52
6. Claude Lienhard, Catastrophe du tunnel du Mont-Blanc (24 mars 1999): un traitement judiciaire et juridique exemplaire des violences involontaires, D. 2006, 398 Everyone in Europe remembers the horrible fire starting on a truck, which caused 39 victims to die in the middle of the Mont-Blanc tunnel, in March 1999. Subsequent investigations revealed frightening shortcomings both in the tunnel conception and management and the rescue operations, on both sides of the Alps. On 27 July 2005, after a thirteen-week long trial, the local court of Bonneville gave a very careful and remarkably drafted judgment, discussed in the present article. Professor Claude Lienhard, a leading expert in France in the field of catastrophes,40 analyses the whole pre-trial and trial process, 40
He is much cited in O. Moréteau/F. Lafay/M. Cannarsa, France, in: M. Faure/T. Hartlief (eds.), Financial Compensation for Victims of Catastrophes: A Comparative Legal Approach (2006) 81 ff.
53
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showing justice working at its best when under international spotlights. This is a must-read for anyone reflecting on the impact of catastrophes in western societies but also on the judicial treatment of victims of accidents, who may better understand what it takes to improve the system. 7. Philippe Stoffel-Munck, Responsabilité civile, JCP I, 260 and 1639
54
Over some fifteen years, Professor Geneviève Viney authored a chronicle under the title Responsabilité civile in La Semaine Juridique – Jurisclasseur Périodique. This was the best complement to her books, hereby regularly updated by enlightened comments on the latest developments affecting civil liability. Without a doubt, Prof. Viney will be missed, but the good news is that the chronicle goes on, under the leadership of Professor Stoffel-Munck, also from Université Panthéon Sorbonne Paris 1.
IX. Germany Jörg Fedtke
A. LEGISLATION German tort law has not been subject to much legislative intervention since major reforms of the Civil Code (Bürgerliches Gesetzbuch, BGB) took effect in 2002.1 Two areas, however, do merit brief comment – first, the enactment of legislation against unfair discrimination in private relationships (so-called Allgemeines Gleichbehandlungsgesetz) and, second, the continued discussion of amendments to the legal regime governing genetically modified organisms (GMOs). More on the fringes of tort compensation, finally, proposals have been made to include in the relevant state compensation fund German victims of criminal acts committed abroad as well as a wider range of foreign victims injured in Germany.
1
1. Allgemeines Gleichbehandlungsgesetz (BGBl 2006 I, 1897) One of many legislative proposals affected by the decision of the former Chancellor Gerhard Schröder to seek early general elections in 2005 was the socalled Antidiskriminierungsgesetz (ADG).2 Addressing discrimination in the private sphere, this initiative was predominantly designed to meet obligations following from Community law.3 The highly controversial draft, however, reached far beyond the ambit of the relevant EU Directives and sought to enforce equal treatment of individuals with regard to gender, disabilities, religious and ideological views, age, and sexual orientation in wide areas of private law. The ADG saw a first reading in January 2005 but fell, after much controversy, when the lower chamber of Parliament (Bundestag) was dissolved in July that year.4 The new Federal Government of Angela Merkel did not pursue the ini1
2
3
4
Zweites Gesetz zur Änderung schadensrechtlicher Vorschriften of 19 July 2002 (BGBl I, 2674 ff.). Entwurf eines Gesetzes zur Umsetzung europäischer Antidiskriminierungsrichtlinien, Drucksachen des Deutschen Bundestages (BT-Dr) 15/4538 and 15/5723. EU Directives 2000/43/EC and 2000/78/EC of 27 November 2002 (OJ L 303, 2.12.2000, 16–22) and EU Directive 2002/73/EC of 23 September 2002 (OJ L 269, 5.10.2002, 15–20). For various accounts of the discussions surrounding the ADG see, inter alia, P. Fiebig, Anhörung zum Antidiskriminierungsgesetz im Bundestag, Neue Juristische Wochenschrift (NJW) 12/2005, XVI; T. Brand/J. Schmalzl, Bericht aus Berlin, NJW 6/2005 at VI, NJW 10/2005 at
2
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tiative for some time, though action was required in the light of an ECJ ruling on the matter.5
3
Cast in new clothing, the ADG reappeared in August 2006 as the Allgemeines Gleichbehandlungsgesetz (AGG).6 The Act focuses mainly on discrimination in employment relationships (e.g., recruitment, training, working conditions, payment, career opportunities, and dismissal),7 but also covers issues of social security (including medical treatment),8 education,9 and – more importantly – private law contracts aimed at the provision of goods10 or services11 to the public in general.12 The ambit of the original ADG was slightly reduced. The most important liability rules, however, remain unchanged. These include a general provision which reverses the burden of proof with respect to alleged discrimination13 and rules concerning the compensation of any pecuniary and nonpecuniary loss suffered by the party discriminated against.14 The Act, which is likely to become highly relevant especially in the area of labour law, will require some clarification by the courts.15 2. Gentechnikgesetz (BGBl 2006 I, 534)
4
The Act on Genetic Engineering (Gentechnikgesetz, GenTG)16 is worth mentioning not because of the changes which actually took effect last year but rather with a view to a number of difficult issues which were left undecided on that occasion. The Act now regulates free range testing of genetically modified crops in accordance with EU Directive 2001/18/EC. The more controversial question of liability for the contamination of non-GMO crops was, however, not addressed
5 6
7 8 9 10 11 12 13 14
15
16
VI and NJW 14/2005 at VI; H. Schliemann, Diskreditierung der Freiheit durch Antidiskriminierung, NJW 12/2005 at III; Frankfurter Allgemeine Zeitung of 22 January 2005, 1–2: Streit im Bundestag über die Behandlung von Minderheiten; G. Maier-Reimer, Vorgaben aus Brüssel als Vorwand, NJW 30/2005 at III; and Brand/Schmalzl, Bericht aus Berlin, NJW 38/2005 at VI. European Court of Justice case C-329/04 of 28 April 2005. Gesetz zur Umsetzung europäischer Richtlinien zur Verwirklichung des Grundsatzes der Gleichbehandlung of 14 August 2006 (BGBl I, 1897 ff.). For the full text and legislative explanation of the Act see the supplements in Neue Zeitschrift für Arbeitsrecht 16/2006 and NJW 36/2006. See §§ 6–18 AGG. See § 2(1) no. 5 and 6 AGG. See § 2(1) no. 7 AGG. Including housing. Including financial services and insurance contracts. See § 19–21 AGG. See § 22 AGG. See § 15 AGG for claims arising in employment relationships and § 21 AGG for claims arising in other private relationships covered by the Act. For more detailed information see K. Adomeit, Political correctness – jetzt Rechtspflicht! NJW 2006, 2169–2171; G. Maier-Reimer, Das Allgemeine Gleichbehandlungsgesetz im Zivilrechtsverkehr, NJW 2006, 2577–2583; H.-J. Willemsen/U. Schweibert, Schutz der Beschäftigten im Allgemeinen Gleichbehandlungsgesetz, NJW 2006, 2583–2592; R. Gaier/H. Wendtland, Allgemeines Gleichbehandlungsgesetz (2006); P. Schrader/J. Schubert, Das neue AGG (2006); G. Wagner/N. Potsch, Haftung für Diskriminierungsschäden nach dem Allgemeinen Gleichbehandlungsgesetz, Juristenzeitung (JZ) 2006, 1085–1100. Gesetz zur Regelung der Gentechnik (GenTG) of 20 June 1990 as amended by the Drittes Gesetz zur Änderung des Gentechnikgesetzes of 17 March 2006 (BGBl I, 534 ff.).
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despite previous indications that the Federal Ministry of Health was seeking to find a new solution. Currently, liability for contamination is strict, based either on the GenTG17 or, more often, the Civil Code.18 The idea of a special compensation fund, as envisaged by some States and explored by the Federal Government in negotiations with interested parties, was not pursued. Further legislative changes affecting, in particular, property law (especially the interpretation of § 906 BGB) should, however, be expected in the future. The Federal Government has only recently published a set of recommendations to that effect.19 3. Opferentschädigungsgesetz (BGBl 2006 I, 1305) A number of legislative initiatives launched in 2006 focus on compensating German victims of crimes committed abroad, as well as non-EU victims of crimes committed in Germany. The relevant compensation fund, established in 1976 by the Opferentschädigungsgesetz (OEG),20 currently excludes both categories of victims subject to a limited number of exceptions.21 In many cases, such victims can only hope for a one-off payment if their case amounts to an unusual hardship.22
5
The Liberal and Green opposition parties now propose to lift these restrictions and open the fund to Germans injured abroad and, to a lesser extent, foreign citizens suffering from crimes committed within the country. Representatives of the Federal Ministry of Labour and Social Affairs have responded favourably to these suggestions while stressing the need for a more detailed analysis of their financial implications. The Ministry also emphasized that the state should not assume any wider responsibility for harm suffered by its citizens outside German borders.23
6
Finally, it should be noted that the OEG was amended only recently. § 1(8) OEG now offers some support for the unmarried partner of a deceased victim
7
17
18
19
20
21
22 23
The GenTG establishes a strict form of delictual liability in §§ 32 ff. These rules apply directly only to a limited number of facilities in which GMOs are developed, produced, multiplied, stored, destroyed or moved within the physical confines of a given research or special production site, as well as any other activities for which a permission to circulate particular GMOs for the general use by others has not yet been granted. Farmers raising crops from authorised seed are subject to the general rules of the BGB, in particular the provisions protecting the property interests of their neighbours (§§ 903 ff.). § 906 BGB, which regulates the question of liability for the interference with land, was given a strict interpretation by the introduction of § 36a GenTG in 2004. Die weitere Novellierung des Gentechnikrechts – Eckpunkte für einen fairen Ausgleich der Interessen of 28 February 2007 (http://www.bmelv.de/cln_044/nn_750598/DE/04-Landwirtschaft/Gentechnik/KabinettbeschlussGentechnik,templateId=renderPrint.html). Opferentschädigungsgesetz in der Fassung der Bekanntmachung vom 7. Januar 1985 (BGBl I, 1 ff.) as amended on 19 June 2006 (BGBl I, 1305 ff.). E.g., German nationals injured on German aircraft or sea vessels and non-EU nationals injured in Germany if their home country would provide comparable compensation to Germans injured there. Foreigners will also receive (reduced) compensation if they are injured during a legal visit of more than three months, and are fully covered by the scheme after residing legally in Germany for more than three years. In analogous application of § 10a OEG. See P. Fiebig, Bericht aus Berlin, NJW 52/2006 at VI.
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who, as a consequence of a crime, gives up his or her employment in order to raise a mutual child.24
B. CASES 1. Bundesverfassungsgericht (BVerfG), 2 May 2006, NJW 2006, 2836: Privacy (Aerial Photographs of Private Homes)25 a) Brief Summary of the Facts
8
The plaintiffs, a fairly well-known couple involved in the film industry, live and frequently work at their house on Mallorca. The defendant runs a press agency which specialises in providing aerial photographs taken of the homes of celebrities, together with specific directions on how to reach the properties in question. Photos of and directions to the homes of several stars, among them the plaintiffs, were published by a magazine. Readers were encouraged to seek out and meet these celebrities with the help of the details provided. The plaintiffs sought to prohibit further publication of the photos if combined with their names, as well as the detailed information concerning the location of their home. The courts upheld the claim. The Federal Constitutional Court, asked to invalidate these decisions, declined to give a full ruling on the matter. b) Judgment of the Court
9
The Court confirms that press agencies enjoy the protection of art. 5(1) of the German Constitution, which establishes press freedom, and that production and commercial exploitation of material designed solely for the purposes of entertainment fall within the protective scope of that freedom. The activities of the defendant must, however, be seen in the light of the plaintiffs’ general right to the protection of their personality. This right also covers images of the private home of an individual if – as in the case at hand – the property is not open to view by the general public and the owner can thus reasonably expect not to be the subject of public scrutiny. The exact address and location of the property enjoy similar protection under the circumstances of the case. Though taken from a public register, publication of these details in a widely circulated magazine and with the aim of drawing public attention to the property puts the personality rights of the owners at a higher and substantially different risk than that resulting from the possible discovery of the contact details by single individuals who conduct a specific search in publicly accessible sources. In balancing the two constitutionally protected positions, that of the plaintiffs clearly prevails. This result justifies the injunctions issued by the ordinary courts.
24
25
Gesetz zur Änderung von Vorschriften des Sozialen Entschädigungsrechts und des Gesetzes über einen Ausgleich für Dienstbeschädigungen im Beitrittsgebiet of 19 June 2006 (BGBl I, 1305). Case 1 BvR 507/01.
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c) Commentary
This decision of the Federal Constitutional Court, though not surprising, is a welcome clarification concerning the publication of images which do not show individuals themselves but rather their private dwellings. The careful balancing exercise conducted by the Court rightly comes out in favour of the plaintiffs, stressing that the interest of the public to be informed about matters of wider concern cannot be invoked in cases where a publication only serves to meet the curiosity of a magazine’s readership. It is important to note, however, that cases of this kind can go the other way if celebrities themselves freely disclose to a wider audience details of their private homes. This had happened in a similar case decided by the Bundesgerichtshof in 2004.26
10
2. Bundesgerichtshof (BGH), 22 November 2005, NJW 2006, 601: Defamation Through Selective Reporting27 a) Brief Summary of the Facts
The plaintiffs – a Roman Catholic archdiocese, its Cardinal, and a prelate – seek to prevent the defendant – a journalist – from making statements which give the (false) impression that they (the plaintiffs) had known that a teenager, allegedly pregnant after coerced sexual intercourse with a priest attached to the diocese, was seeking an abortion, and that they had failed to act upon such knowledge by, first, contacting the girl in an attempt to save the child, and, second, removing the priest from office. Two articles and a radio broadcast produced by the defendant in 1996 did not mention that representatives of the diocese had asked the counselling facility treating the girl for both her name and the identity of the priest, but that this information had not been disclosed. The defendant also failed to point out that a letter sent by the facility to the diocese (and mentioned in the defendant’s publications) had equally protected their identities. The plaintiffs argue that these omissions amount to an incorrect and defamatory statement. The lower courts granted, and upheld on appeal, an injunction against the defendant.28 Prior litigation concerning the same issue had already established that the plaintiffs had no knowledge of the girl’s or the priest’s identities at the time.29
11
b) Judgment of the Court
The Bundesgerichtshof confirmed the decision of the lower courts following an objective interpretation of the two articles and the radio broadcast. The Court draws a distinction between, on the one hand, a simple dissemination of mere facts (which leaves an audience at liberty to draw its own conclusions) and, on the other, a covert statement achieved through the deliberately misleading combination of seemingly open-ended phrases and omissions (which lead an 26 27 28 29
BGH, NJW 2004, 762 ff. Case VI ZR 204/04. On the basis of §§ 823(1)(2), 1004 BGB and § 186 of the German Criminal Code. See OLG Köln, Neue Juristische Wochenschrift Rechtsprechungs-Report Zivilrecht (NJW-RR) 1998, 1175 and Bundesverfassungsgericht (BVerfG), NJW 2004, 1942.
12
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audience in a particular – and in this case wrong – direction). Only the latter can be compared to a false statement, and freedom of expression, as well as the inability of an author to completely control what conclusions a reader or listener might draw from the presentation of mere facts, require courts to take special care in distinguishing these two categories. The contentious material clearly indicates that the defendant wanted his audience to draw a negative conclusion regarding the way the case was handled by the plaintiffs. This in itself is permissible but subject to the disclosure of any information which might shed a more favourable light on the role of the diocese. c) Commentary
13
This case confirms a line of earlier decisions which highlight the potentially negative effect that omissions in newspaper reports and television or radio broadcasts can have on the reputation of an individual.30 It is a well-balanced response to the problem and correctly emphasises the importance of free speech in the light of the difficulties an author or producer may sometimes have in predicting the effect of pure statements of fact. It is, however, an easy case; the journalist was obviously engaged in a crusade against the diocese and its representatives despite better knowledge, and deliberately suppressed a number of important aspects in his seemingly objective account of the events. Less clear-cut cases may, however, require the courts to analyse more carefully the borderline between – possibly unintentionally – incomplete reports and a manipulative omission of facts which translates into the equivalent of a defamatory statement. 3. BVerfG, 22 August 2006, NJW 2006, 3409: Post-Mortem Right to One’s Own Image31 a) Brief Summary of the Facts
14
The plaintiff sells, inter alia, photocopiers. In 1993, it advertised a particular model, emphasising its ecological features by use of the so-called “blue angel” (a symbol indicating that a product is environmentally friendly). The advert also included the photo of a woman imitating a well-known scene from the film “Der blaue Engel” featuring the German actress Marlene Dietrich. Dietrich was at that time no longer alive; her daughter, the only heir, did not consent to the use of this personification of her mother. She sought disclosure of the details of the campaign and, subsequently, payment of a licensing fee. Following protracted litigation, the BGH eventually ordered disclosure, upon which the daughter was awarded a fee for the use of the scene by the court of first instance. The plaintiff’s attempts to appeal against this decision failed. His constitutional complaint, based mainly on the argument that the ordinary courts had created a new post-mortem right to the protection of one’s image and thus acted outside the limits of their constitutional role, was rejected by the Federal Constitutional Court. 30 31
See BGH, NJW-RR 1994, 1242 ff.; BGH, NJW 1996, 1131 ff. and BGH, NJW 2004, 598 ff. Case 1 BvR 1168/04.
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b) Judgment of the Court
The Court stresses the duty of judges to develop the law. This recognised function of courts has become especially important in recent years due to the increasingly difficult task faced by the legislator in reacting to rapid societal change in a timely manner. Judges are, moreover, called to interpret and adapt the many open-ended legal provisions so often found on statute books today. The ordinary courts have acted within the limits of their competence as set out by art. 20(3) of the German Constitution when holding that certain aspects of an individual’s personality rights which have a commercial value can benefit a deceased’s heirs. This development is not constitutionally mandated as human dignity, the basis of personality rights under German law, will in most cases not be infringed by a commercial exploitation of the deceased’s personality. This does not, however, prevent the courts from acknowledging a private law right of this kind, which in turn supports the demand for licensing fees as raised by Dietrich’s daughter. Such a right seems justified in the light of the fairly weak legal position of relatives, who can – under the current state of the law – only prohibit the further use of a deceased’s personality rights once an unauthorised exploitation has come to their attention.
15
c) Commentary
This decision of the Federal Constitutional Court closes the gap between the protection of individuals before and after death found in many legal systems. Courts have awarded financial compensation for infringements of personality rights of living individuals ever since the famous Herrenreiter decision of the BGH in 1958, but had kept at bay the ability of heirs to protect the very same rights post-mortem. The deterrent effect of preventive measures is, however, rather limited when the commercial value of certain images reaches € 70,000 (the licensing fee awarded by the OLG München in this case32) or even € 1.2 million (as in a recent judgment of the Landgericht München involving the former tennis player Boris Becker).33 The most convincing justification for this approach lies in the negative effects which an uncontrolled commercial exploitation of a deceased’s personality can potentially have on his memory in the public, and the practical hurdles which often render alternative methods of protection meaningless.
16
4. BGH, 6 December 2005, NJW 2006, 605: Allgemeines Persönlichkeitsrecht of the Deceased34 a) Brief Summary of the Facts
The 80-year-old mother of the plaintiff was killed at the hands of her mentally deranged sister in October 2000. The police allowed a camera team of the defendant, a TV production company, to enter the house where the events took place. The team filmed the partially naked corpse both in the house and, 32 33 34
OLG München, NJW-RR 2003, 767 ff. LG München, Archiv für Presserecht (AfP) 2006, 382 ff. Case VI ZR 265/04.
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later, in the morgue. The sister of the victim was also interviewed at the scene of the crime and filmed as she was led off in handcuffs by the police. A 30minute feature about these events was shown on television in February 2001. The defendant has already agreed not to publish or allow further publication of the material. The plaintiff’s sister was awarded damages for non-pecuniary loss in a separate court decision (€ 10,000). The plaintiff’s claim, based on an infringement of his mother’s post-mortem personality rights or, alternatively, his own was rejected both by the Landgericht Köln and, on appeal, the BGH. b) Judgment of the Court
18
The Court briefly summarises its case law concerning the general right to the protection of the personality (allgemeines Persönlichkeitsrecht),35 stressing that this right can, in principle, even offer protection to the deceased (postmortaler Persönlichkeitsschutz).36 Surviving family members of the victim can, however, only prohibit further infringements of the right but are not in a position to claim compensation in money unless commercially exploitable aspects of the allgemeines Persönlichkeitsrecht are at stake. This is not the case here since the mother’s (limited) notoriety is based solely on her unfortunate fate as the victim of a killing, which involves no further financial advantages either for her estate or third parties. The plaintiff’s right to the protection of his own personality is not affected either. While severe infringements which cannot be remedied otherwise will attract compensation in money, the plaintiff is only indirectly affected here by the violation of personality rights of the mother. While the television broadcast was certainly distressing, this is not sufficient to sustain the claim since the plaintiff himself was neither shown nor in any other way mentioned in the film feature. c) Commentary
19
The Bundesgerichtshof rightly stresses the importance of human dignity under the German Constitution and confirms the possibility of infringements postmortem. By restricting the rights of surviving family members to warding off further violations, and allowing financial compensation only in the rare cases where the exploitation of the deceased’s personality involves acknowledged commercial interests, the BGH strikes the right balance. The justification for this approach follows from the Court’s analysis of the two main functions of a claim for the infringement of personality rights, which should, first, provide satisfaction for the victim (Genugtuung) and, to a much more limited extent, prevent similar violations from occurring again in the future (Prävention). While a deceased victim cannot feel satisfaction, the latter consideration will not in itself suffice to justify a family member’s claim for compensation in money. 35
36
See, e.g. BGHZ, NJW 1995, 861 ff.; BGHZ, NJW 1996, 984 ff. and BGHZ, NJW 2005, 215 ff., as well as the decisions of the Federal Constitutional Court in BVerfG, NJW 1973, 1221 ff. and BVerfG, NJW 2000, 2187 ff. BVerfG, NJW 1971, 1645 ff.; BVerfG, NJW 2001, 2957 ff.; BVerfG, NJW 2001, 594 ff.; BGH, NJW 1990, 1986 ff. and BGH, NJW 2005, 1876 ff.
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There are, of course, cases which lie on the borderline between “simple” – if distressing – infringements of a deceased’s personality rights and a more profound commercial exploitation, which could lead to compensation in money. The plaintiff in this case tried to argue that the defendant was indeed drawing financial advantages from the sensational killing by marketing the images of his deceased mother. The Bundesgerichtshof rejects this reasoning by introducing an appropriate distinction between, on the one hand, the traditional use of certain personality rights by their bearers (e.g., through advertising) – the benefits of which should pass on to an estate upon death – and, on the other hand, the unwelcome or even distressing use only for the commercial benefit of third parties. Family members of a deceased can raise financial claims with respect to the first category, but not the second. This approach may prevent the unwarranted exploitation of rights both by third parties and family members who, though certainly aggrieved, are not directly affected by such events.
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5. BGH, 18 July 2006, NJW 2006, 3268: Verkehrssicherungspflicht37 a) Brief Summary of the Facts
The plaintiffs – a mother and her two children – were guests in a Greek hotel in August 2001. They had booked their stay with the defendant, a German tour operator. Unknown to the defendant, and not mentioned in his catalogue, the owner of the hotel had built a large water slide on the premises, which could be used by guests subject to an extra charge. The slide did not meet Greek building standards and had been erected without the required permit. A third son and brother of the plaintiffs was sucked into the unsecured pump system of the pool at the lower end of the slide and drowned. The plaintiffs suffer from a medically recognised post-traumatic stress syndrome caused by the death of the family member. They claim compensation for a number of specified pecuniary losses (totalling € 3,000), a reasonable amount for pain and suffering (in the range of € 20,000 each), and compensation of any future pecuniary loss attributable to the incident. The lower courts decided the case in favour of the plaintiffs.
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b) Judgment of the Court
The Bundesgerichthof confirms the decisions of the Landgericht Köln38 and the Court of Appeal.39 The defendant was obliged to ensure the safety of any hotel facilities accessible to his customers. This obligation did not result from the principles of vicarious liability (§ 831 BGB) since the hotel manager and his staff were not subject to direct instructions or supervision. Liability is, however, established on the basis of the defendant’s failure to meet his own duties of care (Verkehrssicherungspflicht). These duties include generally all measures necessary to secure the success of the journey and, in particular, the choice and supervision of appropriate local partners. Customers can therefore expect regular checks in terms of health and safety even if particular facilities 37 38 39
Case X ZR 142/05. LG Köln, NJW-RR 2005, 704 ff. OLG Köln, NJW 2005, 3074 ff.
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are not mentioned in a tour operator’s brochure (although omission may reduce the main obligations resulting from the contract). The Court points out that the slide was located within the hotel premises and obviously part of its recreational facilities. The fact that its use was made subject to a local surcharge is not in any way unusual; the same is often true for other “special” services such as floodlit tennis courts or child care and does not affect the legal duties of the defendant under German tort law. The defendant is, moreover, at fault. In this point, the BGH does not engage with the approach of the Court of Appeal, which had held that the dangers of the unsecured water pump were obvious to any adequately trained and observant employee. The Court instead emphasises that the defendant had not even asked the hotel management whether the slide had been approved by the relevant Greek public authority. The post-traumatic stress syndrome suffered by the plaintiffs is, finally, an accepted medical condition. It is a foreseeable consequence of the breach of duty and an infringement of the plaintiffs’ own right to health as protected under § 823(1) BGB. c) Commentary
23
The first point to make is that this case would today fall squarely within the area of contract law. As the Bundesgerichtshof is anxious to stress in an unusual introduction to the judgment, §§ 651f and 651c(1) BGB – which regulate damages resulting from the violation of package tour contracts – now also allow compensation of pain and suffering under § 253(2) BGB as amended in 2002. Regardless of this shift from tort to contract, the decision is to be welcomed since it provides guidance in an area which has thus far received fairly little attention from the Court – duties of tour operators to care for the health and safety of their customers in facilities owned and managed by third parties. There is a reason for this. The BGH is limited in its ability to review the decisions of lower courts when it comes to the standard of care that tour operators have to meet in practice; much will depend on the individual factual circumstances.40 The decision will, however, have a long-term effect on case law in this area as it confirms a trend to clamp down on the often careless practices in an increasingly competitive industry.41 The commercial implications are substantial. Tour operators will now have to ensure not only that their glossy catalogues live up to reality but also, more importantly, that the partners they make use of provide a basically safe holiday environment.
40 41
See BGH, NJW 1988, 1380 ff. and BGH, NJW 1993, 1066 ff. For Germany see, e.g., the recent decision BGH, NJW 2006, 2918 ff. Here, a tour operator promoted a holiday apartment as “children friendly”. The door leading out to the garden did not, however, feature break-proof glass. The plaintiff, a child staying in the apartment with her parents, fell against the door and suffered considerable personal injury when the glass gave way. The BGH confirmed the Verkehrssicherungspflicht of the defendant tour operator and damages for pain and suffering (€ 25,000).
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6. BGH, 24 January 2006, NJW 2006, 1592: Privileged Tortfeasors in Work-Related Accidents42 a) Brief Summary of the Facts
The plaintiff was injured by the defendant’s cow which had escaped from its shed. After having successfully pursued the animal and chased it into a nearby barn, the plaintiff was injured as the cow jumped over a barrier erected by the plaintiff. This was regarded a workplace accident by the public health insurer in the State of Baden-Württemberg. The plaintiff nevertheless sought to establish the liability of the defendant under private law. The court of first instance confirmed this but was overruled on appeal on the basis that the defendant was in fact a professional farmer and privileged tortfeasor.43
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b) Judgment of the Court
The Bundesgerichtshof disagreed and sent the case back to the Landgericht Stuttgart for further clarification of possible contributory negligence. Courts are indeed bound by the decisions of public health insurers to accept certain events as workplace accidents.44 This does not, however, activate the special employers’ privilege. The plaintiff was a “helper in need”45 and will therefore enjoy the protection of a general insurance scheme which is not funded by employers’ contributions. The privilege, a consequence of such contributions to the statutory workplace accident scheme, serves a specific purpose – to prevent private legal disputes from disrupting employment relationships – and cannot be invoked in this case.
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c) Commentary
The Bundesgerichtshof has over the past years handed down a steady stream of decisions concerning workplace accidents. These cases have widened the scope of the statutory workplace accident compensation scheme and, in turn, increased the importance of the employers’ privilege. It is, however, essential to limit this mechanism to cases in which the victim is actually compensated by funds provided by this specific regime. Applied on a more general basis, the privilege would not only distort the general rules of tort law but also provide companies with an unwarranted windfall at the cost of the taxpayer.
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7. BGH, 23 January 2006, NJW 2006, 1121: State Liability (Social Services)46 a) Brief Summary of the Facts
The plaintiffs, two insurance companies, seek recovery of medical and social security expenses from the defendant, a public authority charged with safe42 43 44 45 46
Case VI ZR 290/04. See § 104(1) SGB VII (Federal Social Security Code, Part VII). See §§ 8(1), 2(1) no. 13 SGB VII. Nothelfer. Case III ZR 164/05.
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guarding the welfare of children. Their client, today roughly seven years old, was placed in private care after employees of the defendant had found the child in desolate circumstances and established that the natural mother was unable to properly meet her parental responsibilities. Only weeks after these events, the child suffered severe head injuries – resulting in complete and permanent disability – while in the care of the foster parents provisionally charged with the baby’s care. The lower courts rejected the claim (aimed at the payment of € 51,000 and all further costs resulting from the injury). This was confirmed by the Bundesgerichtshof. b) Judgment of the Court
28
According to the BGH, this is not a case of state liability under § 839 BGB. The defendant exercised public authority when it placed the child with its provisional foster parents. The decision itself, the selection of the foster home, and the following (brief) supervision of the foster arrangements by the public authority all met the legally required standards. More importantly, however, the Court draws a distinction between establishing foster care, qualified as the exercise of public authority, and the daily execution of this care by the foster parents, for which the defendant is not responsible. c) Commentary
29
This decision, which analyses in some detail the relevant provisions of the Federal Social Security Act, will have substantial repercussions both for the parties involved in this particular case and foster care arrangements in general. Who should bear the substantial medical and other costs for the (lifelong) treatment and care of this unfortunate child – the public purse or the foster parents who agreed to take the baby in? The BGH rightly stressed that the public authority in question discharged its statutory duties without fail, and put the foster parents – who had, admittedly, assumed their responsibilities following from the arrangement on their own account – on a par with “ordinary” (natural) parents. This result can certainly be justified in purely legal terms, but the ruling does leave a number of open questions. Who should reasonably bear the financial risks resulting from foster care – which is, after all, designed to protect children in need and thus serves an important public interest? Does this outcome, moreover, sit comfortably with the fact that the state is, without any doubt, responsible for children placed not with foster parents but rather in state-run facilities? Luckily, this decision was an easy one. The foster parents in question were fortunate enough to have insurance coverage, a fact stressed by the BGH. The heavy financial burdens arising from the event will thus have to be carried neither by the foster parents privately nor the general public but, instead, by the community of clients insured with the two plaintiff companies. Whether this is fair and reasonable is open to discussion. More importantly, however, public authorities must in future ensure that foster parents are made aware of their potential liability, and encouraged to take out adequate private insurance.
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8. BGH, 18 May 2006, JZ 2006, 1064: State Liability (European Convention on Human Rights)47 a) Brief Summary of the Facts
The plaintiff had unsuccessfully applied for asylum and was ordered to leave the country within a specified period of time. The public authorities alerted him to the fact that he could be detained and deported should he fail to comply. This order was, however, never properly served. A year later, the police sought judicial authorisation to arrest the plaintiff. A court order was granted and executed on the same day. On the occasion, the plaintiff explained to the judge that he had been unaware of his obligation to leave the country. He was nevertheless detained for 13 days. The court order was eventually overruled by the Landgericht Stuttgart. The plaintiff now seeks € 143 for pain and suffering. The lower courts as well as the Supreme Court confirmed the claim.
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b) Judgment of the Court
The BGH upheld the claim based on art. 5(5) of the European Convention on Human Rights (ECHR) and § 253(2) BGB. The detention was illegal on the basis of German public law and thus, according to the BGH, a violation of art. 5(1) ECHR. In reaching this result, the Court addresses two principles developed by Strasbourg in the interpretation of the Convention. There is, first, the notion that a detention authorised by a court of law is not necessarily unlawful even if the judgment subsequently turns out to be illegal in terms of domestic law.48 In a similar vein, minor procedural flaws will often not be regarded as a violation of art. 5 ECHR.49 While acknowledging the existence of similar principles under German law,50 the BGH stresses that individuals seeking asylum for the first time have a statutory right to stay in the country until validly ordered to leave. The detention of the plaintiff therefore suffered not only from a formal flaw but was manifestly wrong. The BGH, secondly, rejects the caveat that the public authorities in question must have acted arbitrarily. While stressing that arbitrary detention would certainly fall within the ambit of the European Convention, the Court clarifies that any detention contrary to German law falls foul of art. 5(1) ECHR.
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c) Commentary
In some jurisdictions, a claim for € 143 would have difficulties in reaching a supreme court. The case does, however, highlight an important principle. In an age in which international law, on the one hand, is increasingly deemed to protect individual interests, but in which states, on the other, are frequently rather reluctant to accept the legal consequences of their international obligations, this judgment conveys the right political message.
47 48 49 50
Case III ZR 183/05. ECtHR – Douiyeb – NJW 2000, 2888 at 44. Ibid., at 52. BGHZ 57, 33 at 42 f.; Staudinger/Wurm, BGB (13th ed. 2002) § 839 no. 238 ff.
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The decision is also interesting as far as the relationship between national courts and the European Court of Human Rights is concerned. The reasoning of the Bundesgerichtshof is straightforward – the infringement of German law leads to an infringement of art. 5(1) of the European Convention on Human Rights and thus to a claim for compensation. But the Court is also at pains to discuss – and reject – various limitations of art. 5 rights developed by Strasbourg. The result seems to be a stricter interpretation of the Convention, which begs the question how these different standards can be reconciled. The answer lies in the different functions that the European Court of Human Rights and national courts are called to perform. The protection of Convention rights is primarily a duty of the latter, which should interpret them in the light of their specific knowledge of domestic law and according to the standards it prescribes. Strasbourg can and should only ensure a minimum standard of human rights’ protection across the Continent. Limitations in its interpretation of art. 5 of the Convention are thus not the result of a less protective philosophy but rather the consequence of the limited role that the Court can play in providing a remedy in the most serious of human rights’ violations. 9. BGH, 14 March 2006, MedR 2006, 588: Information Given to Patients (Blood Donation)51 a) Brief Summary of the Facts
34
The plaintiff donated blood in October 1999. The procedure, performed by a doctor in a specialised donation unit and with state-of-the-art equipment, permanently damaged a nerve in his left arm. Two subsequent operations failed to bring relief. The plaintiff is now on permanent medication and unlikely to recover fully. He has had to cut down on his work as a police officer. Despite this negative experience, he again donated blood in early 2000.
35
The plaintiff claims compensation for pain and suffering (at least € 10,000) as well as the cost of medical certificates (€ 90), lost earnings (€ 1,700) and travel expenses connected to medical treatment (€ 1,900). The court of first instance dismissed the claim in full. On appeal, the plaintiff was awarded compensation for pain and suffering (€ 15,000) as well as part of the travel expenses and the cost of the medical certificates. On further appeal to the BGH, the defendants sought to re-establish the judgment of the court of first instance while the plaintiff sought full compensation for the travel expenses and compensation of his lost earnings. b) Judgment of the Court
36
The Bundesgerichtshof quashed the judgment of the Court of Appeal insofar as it reduced the level of compensation for travel expenses and rejected the claim concerning the plaintiff’s loss of earnings. The claim is thus – subject to a renewed assessment of the loss suffered by the plaintiff – fully justified on the basis of §§ 823(1), 831 and 84752 BGB. 51 52
Case VI ZR 279/04. As in force at the time.
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In reaching this result, the Bundesgerichtshof stresses, first, the importance of a patient’s consent to any form of medical treatment which, in turn, depends on adequate information concerning the specific risks involved. The Court emphasises that there can be no difference between a treatment designed to improve the health of the patient and – as in this case – a procedure which merely serves the interests of third parties. Individuals donating blood are thus to be considered as “patients” in the traditional sense of the word.
37
After setting out these basic considerations, the Bundesgerichtshof analyses the requirements concerning the information given to patients in cases of this kind. The Court thereby draws a parallel between an – altruistic – blood donation, on the one hand, and a patient who seeks surgery for purely cosmetic reasons on the other. Previous decisions concerning the latter category have established strict standards – the less a particular treatment is necessary for medical reasons, the more information must be provided with regard to the possible advantages and risks. The Supreme Court extends these principles to blood donations, which are of benefit to society at large rather than the individual donor. Doctors are under a special responsibility to safeguard such patients under these circumstances, and to ensure that the donor is fully aware of any dangers involved. These standards apply despite the fact that blood donations are routinely performed many thousand times a day. Less restrictive rules which allow the use of information leaflets and require a more detailed consultation by a doctor only if the patient so demands may apply to some routine vaccinations but cannot be invoked here due to the fact that such vaccinations again benefit the patient while blood donations are made in the public interest. The Bundesgerichtshof also stresses that any form of written information would have to set out very clearly any risks involved. The plaintiff had in fact received a leaflet explaining the procedure in general terms, but the reference to possible injuries was not specific enough and did not convey in any detail the quite severe consequences of the type of damage suffered by the plaintiff. Such information could have easily been provided on occasion of the initial examination conducted prior to the procedure and despite the high number of donations made in facilities of this kind on a daily basis.
38
The second blood donation of the plaintiff, made after the injury occurred and in the same facility, can, finally, not be regarded as consent to the previous events. The plaintiff was at that point in time still unaware of the medical risk which had materialised on that occasion.
39
c) Commentary
Interested parties have waited for this decision of the Bundesgerichtshof with some measure of anxiety. The practical consequences of the ruling are indeed substantial as facilities conducting blood donations will now have to review their procedures with respect to their duty to inform donors about the various risks involved. The most important question in this context was, however, not conclusively dealt with by the Court – can donation facilities resort to information leaflets and restrict direct consultation between doctor and donor
40
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to cases in which the latter makes a specific request to that effect? The Oberlandesgericht Zweibrücken had taken a very strict stance on appeal when it held standardised information leaflets not to be sufficient. This seems to be too restrictive. The BGH opened the door to less strict information requirements in the decision concerning standard vaccinations six years ago. Subject to an adequately detailed leaflet, the Court held that patients could be obliged to ask for more information from a doctor if the procedure in question was well known to the general public and the possibility of further – oral – discussion was clearly indicated on the handout. It seems that such written information could be provided in the case of blood donations, which do not pose more severe health risks than most standard vaccinations. This approach will require doctors to ensure that the information given on the leaflet was in fact understood correctly by the patient, but this is still preferable to an individual consultation in each and every case. The importance of sufficient blood supplies requires manageable procedures, which in turn have to be weighed against the safety of individuals willing to donate their blood for the benefit of others. The jurisprudence of the Court concerning vaccinations does, however, seem to offer a good compromise. 10. BGH, 13 June 2006, NJW 2006, 2477: Duty to Inform Patients when Applying a New Method of Treatment (“Robodoc”)53 a) Brief Summary of the Facts
41
The plaintiff received a hip prosthesis with the help of a (then) new and basically automatic method (Robodoc surgery) in 1995. The prosthesis itself was implanted perfectly but the ischias nerve was damaged during the procedure. This permanently impaired the functions of the plaintiff’s legs and feet. She claims that the defendant hospital had not adequately informed her of the risks involved in the procedure, and seeks compensation under various headings. The lower courts dismissed the claim in full arguing, first, that an injury of this kind was, according to expert evidence, a common risk in this type of surgery and not an indication of medical malpractice; second, that the lengthy operation (more than five hours) was – again – neither a sign that something had gone wrong nor in itself a possible cause for the injury; and, third, that the plaintiff had been adequately informed about all possible forms of treatment (traditional operation and the automatised method), and fully instructed on the medical risks attached to each approach.54 b) Judgment of the Court
42
The BGH quickly dismisses the possibility of medical malpractice; the bulk of the judgment, which confirms the decisions of the lower courts, focuses on the duty of the defendant to inform patients of the risks connected to a particular medical procedure. The Court holds that the defendant had, in essence, indeed complied with the required standards. While it was primarily for the doctor to 53 54
Case VI ZR 323/04. See OLG Frankfurt a. M., NJW-RR 2005, 173 ff.
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decide which treatment was appropriate in a particular case, the right to selfdetermination requires that patients are informed about viable alternatives and any particular advantages or risks these might include. This was done in the case. The Court points out, however, that the instruction given to the plaintiff was not entirely satisfactory. Whereas general remarks concerning possible but unpredictable complications are usually not necessary and, indeed, often counterproductive, new methods of treatment do trigger a need to highlight more prominently the risk of unknown complications. This was the case here as Robodoc was first used in the United States only three years before the events; the first surgery of this kind was performed by the defendant in 1994, only a year prior to the operation which injured the plaintiff, and the BGH notes that there seems to be some uncertainty as to what potential dangers of the procedure were known – or at least discussed – at the time (1995). The defendant failed to emphasise this – general – risk. At this point of the judgment, however, the BGH stresses the specific circumstances of the case and regards as sufficient the information given about the risks of the traditional method, which include the specific damage suffered by the plaintiff. c) Commentary
When reading this judgment of the BGH, some readers might be surprised at the outcome. The Supreme Court stresses quite strongly that patients should receive a full briefing on medical risks resulting from their treatment but not be burdened with unnecessarily disconcerting warnings about the danger that unknown – but always possible – risks might materialise. This is different, however, when it comes to new methods of treatment which require a higher level of awareness on the side of the patient. Having thus prepared the ground for a fairly strict level of scrutiny, the Court then arrives at a surprisingly short conclusion by accepting as sufficient the fact that the defendant’s personnel had mentioned the possibility of nerve damage in the context of the traditional method of treatment. This may or may not be a just outcome, depending on the way in which the information was presented in this case – in particular, whether nerve damage was described as a general risk or rather as a feature of the “old” approach which the new Robodoc technique might even be able to reduce or avoid. The case thus highlights the limited ability of courts in reconstructing the dynamics of verbal interaction and the advantages of the usually tedious and sometimes even frightening written information which hospitals and clinics increasingly rely on.
43
C. LITERATURE 1. H.-P. Greiner, Arzthaftpflichtrecht (C.H. Beck, 5th ed. 2006) The liability of doctors will more often than not result from both the violation of contractual obligations and the infringement of legally protected interests. This new edition of a book originally penned by Karlmann Geiß seeks to cover both aspects. A well-structured presentation of the main principles of medical liability is thereby combined with numerous references to the most important German cases in the area. Special emphasis is placed on the rules governing the
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relationship between doctor and patient, medical malpractice, liability resulting from insufficient information given to the patient, prescription of claims, and a selection of special procedural problems which typically arise in medical liability cases. The book is designed for specialists practising in the area, who will value it as a rich source of up-to-date information. 2. D. Medicus, Gesetzliche Schuldverhältnisse (C.H. Beck, 5th ed. 2007)
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This successful little book, now in its fifth edition, offers a concise summary of the various non-contractual obligations found in the BGB, most importantly torts. Three chapters cover fault-based liability, strict liability, and a selection of general problems from the law of damages including causation, multiple tortfeasors, contributory negligence, and the distinction between pecuniary and non-pecuniary loss. Common lawyers will like the approach. Based on over 200 cases, each one modelled along the lines of a leading decision, Medicus avoids lengthy dogmatic explanations and focuses on core problems in casebook style. A brief conclusion summarises the main aspects of each heading. The book is designed for students in the earlier stages of their law degree but will also be of benefit to anyone seeking lively – and at times thought provoking – access to German tort law. 3. J.-H. Bauer/B. Göpfert/S. Krieger, Allgemeines Gleichbehandlungsgesetz (C.H. Beck, 2007)
46
The Allgemeines Gleichbehandlungsgesetz (AGG), finally enacted after many years of heated debate,55 addresses problems of discrimination in various spheres of private life. Many cases are, however, likely to arise in employment relationships and the book therefore quite rightly focuses on issues arising in the area of labour law and (a less obvious candidate) the rights of military personnel. Other topics include suggestions on how entrepreneurs should best adapt their companies to the new regime, consequences the law will have for recruitment procedures, training defence for employers, and a thorough treatment of the claim for compensation. The book analyses these and many other issues through a highly practical lens (all three co-authors are solicitors). The current lack of domestic case law is thereby compensated by references to decisions of the European Court of Justice, though novelty of the statute will require some reconsideration of this material once the first decisions on the AGG are handed down by German courts. The commentary is, in summary, a useful guide to uncharted but highly relevant waters. It is recommended to inhouse counsel, practitioners in the field, and foreign anti-discrimination lawyers with an interest in the German approach. 4. J. Völtz, Sachschadensrecht des Kraftverkehrs (C.H. Beck, 8th ed. 2006)
47
This book, initially authored by Georg Sanden, focuses on the compensation of damage caused to vehicles in the context of traffic accidents. This complex 55
For the wider background see the summary at no. 2 and 3 above.
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and – in practical terms – highly relevant area has traditionally been driven by case law. Legislative intervention in 2002, however, brought a number of substantial changes such as the exclusion of value added tax if the victim chooses to be compensated in money rather than in kind. These developments have now begun to take effect and require careful assessment of the emerging jurisprudence. Völtz’ book thus provides not only a comprehensive account of the basic statutory provisions governing the compensation of damage in this area but also the relevant case law on all levels of the court system and updated versions of the tables regulating compensation for the loss of use of a vehicle during the time of repair. 5. G. Küppersbusch, Ersatzansprüche bei Personenschaden (C.H. Beck, 9th ed. 2007) This book by Küppersbusch has quickly established itself as a standard work on the compensation for personal injury. Now already in its ninth edition, the volume covers the most important aspects of personal injury claims in concise language – e.g., loss of income, medical costs, additional needs of the victim, pain and suffering, compensation for loss of maintenance, the legal position of foreigners, contributory negligence, and the difficult relationship between the rules of social security and general tort law. This last area has been subject to substantial legislative changes over the past years, which have in turn required an extensive revision of the text. Other areas which feature more prominently in this new edition are the psychological effects of physical injuries for the working capacity of victims, problems connected to setting off financial benefits, and the rules regulating recourse of social security agencies.
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6. G. Wagner, Prävention und Verhaltenssteuerung durch Privatrecht – Anmaßung oder legitime Aufgabe? AcP 206 (2006) 353–476 Should private law – including tort law – have a deterrent effect and influence individual behaviour in modern societies? This paper by Wagner answers the question in the affirmative after taking a detailed look at various parts of the German legal system. Criminal, administrative and private law thus each have their strengths and limitations when it comes to regulating the outcome of human activity, and each set of rules can potentially contribute to the desired result. The author develops this thesis – recommending what he calls a “policy mix” – with the help of specific examples taken from, inter alia, contract law, torts, intellectual property, anti-discrimination, and environmental law. He also invokes aspects of European Community law to confirm his analysis. Public and private law are thereby described as interactive, with retreating or expanding spheres of influence; both aim at achieving an appropriate level of individual protection and thus perform very similar functions. This is also true of tort law, which receives some degree of attention in the paper. Both fault and strict liability influence the behaviour of the tortfeasor in the interest of preventing harm; compensation and deterrence are not opposites, as the threat of full compensation will create the correct incentive to avoid similar actions in the future. Wagner’s well argued thesis adds important ideas to the ongoing discussion about the functions of tort law in general, and deserves to be
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taken into account by academically minded readers on both sides of the publicprivate law divide. 7. B. Kannowski, Die Zulässigkeit einer „Teilklage auf Schmerzensgeld“ – Zivilprozessuale Neuheit oder neue Art der Schadensberechnung?, ZZP 2006, 63–85
50
This contribution by Kannowski deals with the problem that victims will not, in principle, be allowed to raise a second claim for pain and suffering on the basis of one and the same injury once a court has handed down its final ruling. The traditional approach will not require the plaintiff to name a precise figure in the lawsuit, but the court will come to a final decision about the amount of pain and suffering in the light of past and present circumstances as well as a prediction about the long term effect an injury might reasonably have on the life of the victim. The latter can often be wrong but the BGH has nevertheless prevented cases from being re-opened unless the condition of the plaintiff takes a substantial turn for the worse which medical experts were in no way able to foresee. This has led to a very restrictive jurisprudence on the matter.56 A case decided by the Landgericht Ulm in 200257 and confirmed by the BGH on (further) appeal two years later58 may now have opened a procedural backdoor by accepting that the plaintiff only raises a partial claim (“Teilklage auf Schmerzensgeld”), which leaves the final verdict open until the rest is pursued at a later point in time and – possibly – with the benefit of more information about the development of the victim’s condition. The author concludes that the judgment of the BGH is open to different interpretations, and that the Court is highly likely to face the problem again in the near future. This is not surprising. The tension between – on the one hand – just compensation of the victim and, on the other, the need to close the books in the interests of legal certainty is difficult to resolve when it comes to pain and suffering. Comparative experience suggests that other legal systems such as France and England face the same dilemma. 8. N. Jansen, Principles of European Tort Law?, Grundwertungen und Systembildung im europäischen Haftungsrecht, RabelsZ 70 (2006) 732–770
51
The development of a common European system of private law is currently high on the academic agenda. This contribution by Jansen analyses the two most important approaches in the area of tort law – the Principles of European Tort Law (PETL), published by the European Group on Tort Law in 2005, and the – ongoing – work of the Study Group on a European Civil Code (the von Bar project). Looking at the results of the two initiatives, Jansen’s critique centres on two important structural issues which any system of non-contractual liability will have to deal with – first, the identification of protected rights and interests and, second, the relationship between fault-based and strict li56 57 58
See, e.g., BGH, NJW 1991, 1535 ff. and BGH, Versicherungsrecht (VersR) 1997, 1111 ff. LG Ulm, 4 O 40/02 of 12 August 2002 (unpublished). BGH, NJW 2004, 1243 ff.
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ability. The author argues that neither approach has managed to resolve these problems conclusively, and that both initiatives therefore provide valuable but limited “restatements” of structures currently found in the various national systems of tort law. On the upside, Jansen does acknowledge the contribution that the Principles of European Tort Law have made in terms of methodology by developing further the idea of Walter Wilburg’s so-called “flexible system” of interacting factors which affect liability, and the Study Group is given credit for its achievements in producing a more coherent common terminology in this area of the law. The most important result of both initiatives may, however, lie in the mere fact that they have produced the necessary points of reference which facilitate a more structured discussion of the topic in the first place. This critique by Jansen is thus only one of many more reactions which the work of these two groups will hopefully provoke over the next years. 9. Bibliography of Selected Books and Articles General: P. Bassenge et al., Palandt: Bürgerliches Gesetzbuch (65th ed. 2006); A. Diederichsen, Die Rechtsprechung des BGH zum Haftpflichtrecht, DAR 2006, 301–313; A. Staudinger, Schadensersatzrecht – Wettbewerb der Ideen und Rechtsordnungen, NJW 2006, 2433–2493.
52
Air traffic: H.H. Rupp, Haftung der Bundesrepublik für das Flugzeugunglück über dem Bodensee?, JZ 2006, 1033–1035.
53
Allgemeines Persönlichkeitsrecht: A. Büchler, Die Kommerzialisierung von Persönlichkeitsgütern, AcP 206 (2006) 301–351; M. Kläver, Rechtliche Entwicklungen zum Allgemeinen Persönlichkeitsrecht, JR 2006, 229–232; J. Stender-Vorwachs/N. Theißen, Das Persönlichkeitsrecht der Frau in den Medien, NJW 2006, 549–553; Chr. Starck, Das Caroline-Urteil des Europäischen Gerichtshofs für Menschenrechte und seine rechtlichen Konsequenzen, JZ 2006, 76–81.
54
Bicycles: D. Kettler, Radfahrer im Haftungsrecht, SVR 2006, 86–93; F. Pardey, Radfahrer und Fußgänger im Straßenverkehr, zfs 2006, 488–493.
55
Bones mores: R. Sack, Der subjektive Tatbestand des § 826 BGB, NJW 2006, 945–951.
56
Business: R. Sack, Die Subsidiarität des Rechts am Gewerbebetrieb, VersR 2006, 1001–1010.
57
Children: H. Buschbell, Der Kinderunfall im Straßenverkehr, SVR 2006, 241–247; M. Notthoff/E. V. Schub, Sektorale Deliktsfähigkeit nach dem Zweiten Schadensersatzänderungsgesetz und Kinderunfälle, zfs 2006, 183–190.
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Damages: Chr. Alexander, Die Erforderlichkeit von Aufwendungen des Geschädigten für schadensausgleichende Maßnahmen gem. § 249 Abs. 2 S. 1 BGB, VersR 2006, 1168–1178; R. Balke, Haushaltsführungsschäden, SVR 2006, 321–325 and 361–367; J. Braun, Schadensersatz bei Selbstvornahme,
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ZGS 2996, 328–332; D. Buller, Der BGH und der Unfallersatztarif – eine Zwischenbilanz, NJW-Spezial 2006, 255/256; S. Gerard-Morguet, Dogmatische Grundlagen des Fahrzeugschadens – Abrechnung auf Reparaturkostenbasis?, zfs 2006, 303–307; H.-P. Greiner, Die Rechtsprechung des Bundesgerichtshofs (VI. Zivilsenat) zum Fahrzeugschaden seit dem Zweiten Schadensrechtsänderungsgesetz, zfs 2006, 63–68 and 124–132; U. Haas, Der Pflegebedarf querschnittsgelähmter Menschen, zfs 2006, 254–256; R. Heß/M. Burmann, Die vermehrten Bedürfnisse, NJW-Spezial 4/2006, 159/160; id., Die Heilbehandlungskosten, NJW-Spezial 2006, 207/208; id., Vorteilsausgleichung beim Personenschaden, NJW-Spezial 10/2006, 447; E. Höfle, Fahrzeugschaden – Abrechnung auf Reparaturkostenbasis – Ersatzbeschaffung, zfs 2006, 242–247; L. Jaeger/J. Lukey, Schmerzensgeld-Tabelle, systematische Erläuterungen, Muster, Urteilstexte auf CD (3rd ed. 2006); J. Jahnke, Schadensrechtliche Aspekte der Schmerzensgeldrente, r+s 2006, 228–230; H. Lemcke, Die gestörte Gesamtschuld in der Personenschadensregulierung, r+s 2006, 52–59; D. Medicus, Neue Perspektiven im Schadensersatzrecht – Kommerzialisierung, Strafschadensersatz, Kollektivschaden, JZ 2006, 805–812; G. Müller, Neue Perspektiven beim Schadensersatz, VerR 2006, 1289–1297; id., Der Tod als Schaden, ZGS 2006, 103–107; F. Roland/A. Richter, Die Nebenkostenpauschale beim Schadensersatz, SVR 2006, 47–48; F. Schmidt, Der Restwert, SVR 2006, 207–209; G. Schiemann/R. Haug, Die aktuelle Rechtsprechung des BGH zur Begrenzung von fiktiven Schadensposten, VersR 2006, 160–166; A. Slizyk, Beck’sche Schmerzensgeldtabelle – Von Kopf bis Fuß. Basisdaten von mehr als 2700 Schmerzensgeld-Entscheidungen mit systematischer Kommentierung des § 847 BGB (5th ed. 2006); G. Wagner, Neue Perspektiven im Schadensersatzrecht – Kommerzialisierung, Strafschadensersatz, Kollektivschäden, NJW 2006, Beilage zu Heft 22, 5–10; id., Unfallersatztarife, NJW 2006, 2289–2294; M. Wolff, Erstattungsfähigkeit des Unfallersatztarifes, zfs 2006, 248–253.
60
Data protection: J. Faustmann, Der deliktische Datenschutz, VuR 2006, 260– 263.
61
Discrimination: K. Adomeit, Political correctness – jetzt Rechtspflicht! NJW 2006, 2169–2171; R. Gaier/H. Wendtland, Allgemeines Gleichbehandlungsgesetz (C.H. Beck, 2006); G. Maier-Reimer, Das Allgemeine Gleichbehandlungsgesetz im Zivilrechtsverkehr, NJW 2006, 2577–2583; P. Schrader/J. Schubert, Das neue AGG (2006); G. Wagner/N. Potsch, Haftung für Diskriminierungsschäden nach dem Allgemeinen Gleichbehandlungsgesetz, JZ 2006, 1085–1100; H.-J. Willemsen/U. Schweibert, Schutz der Beschäftigten im Allgemeinen Gleichbehandlungsgesetz, NJW 2006, 2583–2592.
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Insurance: R. Heß/M. Burmann, Voraussetzungen des Invaliditätsanspruchs in der (Insassen-)Unfallversicherung, NJW-Spezial 2006, 111/112.
63
Intellectual property: U. Mahlmann, Schaden und Bereicherung durch die Verletzung ‚geistigen Eigentums‘ (2006).
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Lawyers: K. Fahrendorf/M. Terbille, Die Haftung des Rechtsanwalts (7th ed. 2005).
64
Media law: J. Petersen, Medienrecht (3rd ed. 2006).
65
Medical malpractice: E. Deutsch, Die Aufklärung bei Medizinprodukten, VersR 2006, 1145–1149; M. Gaßner/M. Reich-Malter, Die Haftung bei fehlerhaften Medizinprodukten und Arzneimitteln – Recht und Rechtsprechung, MedR 2006, 147–152; M. Gehrlein, Grundriss der Arzthaftpflicht (2nd ed. 2006); K. Geiß/H.-P. Greiner, Arzthaftpflichtrecht (5th ed. 2006); P. Gödicke, Aufklärungsumfang und Aufklärungsweg bei fremdnützigen Blutspenden, MedR 2006, 568–571; A. Hausch, Vom therapierenden zum dokumentierenden Arzt – Über die zunehmende haftungsrechtliche Bedeutung der ärztlichen Dokumentation, VersR 2006, 612–621; Chr. Katzenmeier, Aufklärung über neue medizinische Behandlungsmethoden – Robodoc, NJW 2006, 2738–2741; H. Roth, Der Arzt als Samariter und das Haftungsrecht, NJW 2006, 2814–2817; E. Steffen, Formen der Arzthaftung in interdisziplinär tätigen Gesundheitseinrichtungen, MedR 2006, 75–80; L. Taubenheim/E. Glockmann, Zahnmedizinische Konsequenzen der Rechtsprechung zur Haftung des Zahnarztes bei Nervschädigung durch Leitungsanästhesie, MedR 2006, 323–330.
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Motorised traffic: W. Filthaut, Die neuere Rechtsprechung zur Schadenshaftung des Omnibusunternehmers und -fahrers, NZV 2006, 176–180; R. Greger, Kurskorrekturen beim Kraftfahrzeugschaden, NZV 2006, 1–6; C. Griebenow, Erstattungsfähigkeit von unfallbedingten Mietwagenkosten, NZV 2006, 13– 19; R. Heß/M. Burmann, Die Entwicklung des Straßenverkehrsrechts im Jahre 2006, NJW 2007, 486–492; Chr. Hugemann, Mitunter haarige Sache: Versicherungsschutz bei Wildunfällen, NJW-Spezial 2007, 15/16; F.-J. Jagow/M. Burmann/R. Heß, Straßenverkehrsrecht (19th ed. 2006); F.W. Sapp, Das Modell „Begleitetes Fahren ab 17“ im Haftungsrecht, NJW 2006, 408–410; U. Staab, Restwerte auf dem lokalen Markt, NZV 2006, 456–458.
67
Multiple tortfeasors: D. Figgener, Haftung bei mehreren Schädigern – Probleme bei der Quotenbildung, NJW-Spezial 12/2006, 543/544.
68
Pain and suffering: F. Schellenberg, Regulierungsverhalten als Schmerzensgeldfaktor, VersR 2006, 878–884; Ch. Huber, Höhe des Schmerzensgeldes und ausländischer Wohnsitz des Verletzten, VZR 2006, 169–175.
69
Personal injury: R. Klutinius/M. Karwatzki, Aktuelle Entwicklungen im Bereich der Personenschäden, MDR 2006, 667–672; G. Küppersbusch, Ersatzansprüche bei Personenschäden (9th ed. 2007).
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Procedure: R. Heß/M. Burmann, Der unbezifferte Klageantrag, NJW-Spezial 2006, 63; id., Verwertung verfahrensfremder Gutachten im Zivilverfahren, NJW-Spezial 2006, 495/496.
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72
Product liability: R. Sack, Produkthaftung für reine Vermögensschäden von Endabnehmern, VersR 2006, 582–588.
73
Recourse: A. Diederichsen, Rechtsprechung des BGH zum Regress im Schadensrecht, VersR 2006, 293–301.
74
Social security: A. Lehmacher, Die Berücksichtigung des fiktiven Schmerzensgeldanspruchs des Geschädigten beim Regress des Sozialversicherungsträgers nach § 110 SGB VII, NZV 2006, 63–66.
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Sports: W. Grunsky, Beweislast und Gefährdungshaftung im Skilauf, SpuRt 2006, 62–63; J. Fritzweiler/B. Pfister/T. Summerer, Praxishandbuch Sportrecht (2nd ed. 2007).
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State liability: A. Gromitsaris, Die staatshaftungsrechtliche Dimension der Grundrechte, DÖV 2006, 288–294; P. Itzel, Rechtsprechungsüberblick 2005, MDR 2006, 544–549; B. Schöndorf-Haubold, Die Haftung der Mitgliedsstaaten für die Verletzung von EG-Recht durch nationale Gerichte, JuS 2006, 112–115.
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Strict liability: W. Filthaut, Haftpflichtgesetz (2006).
78
Trains: W. Filthaut, Die neuere Rechtsprechung zur Bahnhaftung, NZV 2006, 634–639.
79
Unfair competition: R. Sack, Das Verhältnis des UWG zum allgemeinen Deliktsrecht, Festschrift für Eike Ullmann (2006) 825–844.
X. Greece Eugenia Dacoronia
A. LEGISLATION 1. L. 3471/2006, Protection of Personal Data and of Private Life in the Field of Electronic Communications and Amendment of L. 2472/19971 L. 3471/2006, which incorporated Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002, abolished and replaced L. 2774/1999 on the Protection of Personal Data and of Private Life in the Field of Telecommunications, passed mainly in implementation of the Directive 97/66/EC, the latter being abolished since 31 October 2003 with the above mentioned Directive 2002/58/EC.
1
Art. 14 of L. 3471/2006 repeats the civil sanctions provided in art. 12 of the above L. 2774/1999 and states that any natural or legal person that provokes damage by violating its provisions is bound to full damages. Art. 14 also provides that, if moral harm is provoked, non-pecuniary damages are owed according to art. 932 GCC; said non-pecuniary damages cannot be less than € 10,000,2 unless the victim asked for a smaller amount, and are adjudicated regardless of the requested damages for material damage.
2
L. 2774/1999 provided additionally that the person who proved that he did not know nor should have known about the possibility of provoking damage to somebody else is exempted from any liability. This provision is not included in the new L. 3471/2006 not for any other reason but, as it is explicitly mentioned in the preamble of the law, because the said issue is regulated by the relevant provisions of the GCC.
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FEK (Official Gazette) A, 133. Under the abrogated L. 2774/1999 non-pecuniary damages could not be less than GRD 2 million (€ 5,869.41).
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2. L. 3472/2006, Regulating Matters of Competence of the Ministry of Justice and Other Provisions3
4
Art. 79 of L. 5960/1933 on cheques had been replaced by art. 1 of the L.D. 1325/1972. L. 2408/1996 (art. 4 § 1a) added § 5 to the new art. 79 of L. 5960/1933; said paragraph was subsequently amended by art. 22 of L. 2721/1999. The recent L. 3472/2006 (art. 15 § 3) replaced the above mentioned § 5 of art. 79 of L. 5960/1933, which now in its second sentence explicitly provides that the previous legal bearer and endorser of the cheque, who paid the amount of the cheque to the legal bearer after a relevant recourse, is entitled to damages according to the provisions of the GCC on torts (art. 914 ff.). Commentary
5
The issue of whether a claim for damages exists, according to art. 914 GCC, also in favour of a previous legal bearer and endorser of the cheque who paid the amount of the cheque to the legal bearer after a relative recourse had been the object of controversial decisions of the Greek Areios Pagos and of a number of articles and notes. Thus the legislator decided to amend L. 5960/1933 on cheques and explicitly recognise the right to damages to the previous legal bearer and endorser of the cheque who paid the amount of the cheque to the legal bearer after a relevant recourse. This choice of the legislator, which has already been criticised,4 is in line with the decisions 320/20015, 691/20026 and 1511/20027 of the Penal Division of Areios Pagos,8 which, though indirectly, had clearly considered that the previous legal bearer and endorser of the cheque is entitled to damages on the grounds that the damage sustained by this previous legal bearer, because of the payment of the cheque, derives and is causally linked to the issue of the cheque not being honoured when presented for payment. It had also been argued in doctrine9 that the damage sustained by 3 4
5
6 7 8
9
FEK A, 135. See I. Markou, First thoughts on an unnecessary and crude intervention of the legislator. Matters from the new provisions of art. 79 § 5 L. 5960/1933, Elliniki Dikaiosini (EllDni, Greek Justice) 47, 1283 ff. A brief summary of the said thoughts can be found infra no. 78. Poiniki Dikaiosini (PoinDik, Penal Justice) 2001, 1009 = Poinikos Logos (PoinLog, Penal Word) 2001, 463 = Poinika Chronika (PoinChron, Penal Chronicles) 2001, 981 followed by extensive commentaries of S. Pavlou, 982 f., approving the view of the Court. Nomiko Vima (NoV, Legal Tribune) 50, 1759 = PoinLog 2002, 772. NoV 51, 514 = PoinLog 2002, 1531. From the Civil Division, of the same view were the minority (2 judges) in the decision of AP 18/2004 (full bench, see herein under fn. 12) as well as, with detailed reasoning, the Athens Court of Appeal (EfAth) 9207/1998 EllDni 40, 1136; the EfAth 6129/2000 Episkopissi Emporikou Dikaiou (EpiskED, Survey of Commercial Law) 2001, 480, preceded by an approving introductory note by K. Pampoukis, 479 f. and the Court of Appeal of Dodekanese 286/2003, published at NOMOS. K. Pampoukis, EpiskED 2004, 634, introductory note preceding the AP 18/2004 (full bench), praising the view of the minority in the said decision. In the same direction also preceding the AP 30/2003 (full bench) EpiskED 2004, 86, introductory note of the same author. See also Ath. Athanassas, Cheque without provision – Every bearer of a cheque is entitled to file a penal suit and an action for damages – Debtor’s imprisonment, Dikaio Etaireion kai Epicheiriseon (DEE, Law of Companies and Enterprises) 8, 129 ff.; id., Cheque without Cover – Complaint
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this previous legal bearer, because of the payment of the cheque, derives and is causally linked to the issue of the cheque not being honoured when presented for payment not only according to the theory of causa adequata but also – and in particular – according to the theory of the protective aim of the violated provision of law. On the contrary, the Civil Division of the Greek Areios Pagos (full bench) with two decisions, decision no. 30/2003,10 issued after reference by its A΄ Div.,11 and decision no. 18/2004,12 also issued after reference by its A΄ Div.,13 had held that the previous legal bearer and endorser of the cheque, who paid the amount of the cheque to the legal bearer after a relevant recourse, does not have such a claim as the damage he sustained from the payment of the cheque is not causally linked to the issue of the cheque which was not honoured when presented for payment; his damage is only linked to his liability as a legal bearer and endorser of the cheque to pay the cheque after a relevant recourse, a liability especially provided by law.14 It had also been argued that the previous legal bearer and endorser of the cheque has no claim for damages according to art. 914 of the GCC, on the ground that such person has sustained only an indirect damage.15
6
3. L. 3482/2006, Ratification of the 2003 Protocol of the 1992 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage and Other Provisions16 L. 3482/2006 establishes the International Supplementary Fund for compensating damage from oil pollution. According to art. 4 § 1 thereof, the said Fund
10
11
12
13 14
15
16
and Law Suit for Compensation, Archeio Nomologias (ArcN, Archive of Jurisprudence) 2005, 139 ff. EpiskED 2004, 88 = DEE 10, 926 = Epitheorisi Emporikou Dikaiou (EEmpD, Review of Commercial Law) 2004, 323 = Chronika Idiotikou Dikaiou (ChrID, Chronicles of Private Law) 2004, 255 followed by approving commentaries of I. Markou, 256–258. AP 280/2003 EEmpD 2003, 837. In the said decision the reasons for which the Court considers both arguments to be equally convincing can be found (for those reasons in English see the brief summary of the said decision in E. Dacoronia in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2003 (2004) 226 f., no. 53 ff.). EllDni 45, 1322 = DEE 10, 927 = EEmpD 2004, 541 = NoV 53, 61 = EpiskED 2004, 635–637 = ChrID 2004, 932 cmt. by Markou (for a brief summary in English of the facts and the judgment of the said decision see E. Dacoronia in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2004 (2005) 333 f., no. 24 ff.). AP 1183/2003 published at NOMOS. The view of the full bench of Areios Pagos, which fully coincides with the view of I. Markou, Law of Cheque (3rd ed. 2002) 408, was followed by the decision of AP 1006/2006 ChrID 2006, 822, also for the previous legal bearer who had endorsed the cheque and handed it over to the bearer as a pledge (see infra no. 65 ff.). Piraeus Court of Appeal 584/1999 EllDni 41, 494 ff.; L. Margaritis in: L. Margaritis/G. Dimitrainas (eds.), Cheque without provision, Issues of Substantial and Procedural Penal Law (2001) esp 177 ff. Contra EfAth 6639/1995 DEE 2, 626; 9207/1998 EllDni 40, 1136; Pavlou, PoinChron 2001, 983, asserting that the previous legal bearer sustains a direct damage. FEK A, 163.
7
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compensates anyone who suffers damage from oil pollution and has not fully and adequately been compensated according to the terms of the 1992 Convention because the total damage exceeds or there is a danger that it will exceed the limit set by art. 4 § 4 of the 1992 Convention. 4. L. 3483/2006, Amendment and Completion of the Provisions on Leasing, Provisions Regarding Public Income and Other Regulations17
8
Art. 16 § 2 of L. 3483/2006, which replaced art. 3 § 3 of L. 2836/2000, provides that the members of the board of directors and the personnel of the Capital Market Commission in principle do not have any civil liability for their acts or omissions when exercising their duties. As an exception, they are held liable if they intentionally breach the stock exchange confidentiality, manipulate the market or abuse the privileged information they possess. 5. L. 3500/2006, on Domestic Violence and Other Provisions18
9
L. 3500/2006, which aims at coping with the phenomenon of domestic violence on the basis of the principles of freedom and dignity of the individual so that individuals co-habit harmoniously within the family, provides in its art. 5 that non-pecuniary damages according to art. 932 GCC adjudicated to the victims of acts of domestic violence as provided by the said law cannot be less than € 1,000, unless the victim asked for a smaller amount. This minimum amount is justified, according to the preamble of the law, because of the great moral demerit of the crimes of domestic violence.
10
According to art. 14 thereof, the agreement of the litigant parties to start the procedure of penal intermediation is regarded as a compromise as to the monetary claims stemming from the unlawful act of domestic violence. However, if the alleged culprit does not comply with the terms of the penal intermediation within three years from the moment the case has been filed, the victim is entitled to file a suit and ask that the agreement is refuted as regards the monetary claims. When the law suit is filed, the victim regains all monetary claims, while amounts of money already paid by virtue of the agreement are sought according to the provisions on unjust enrichment.
B. CASES 1. AP 1123/2006:19 Concurrence of Contractual and Delictual Liability a) Brief Summary of the Facts
11
The plaintiff claimed that she had leased a safety-box in the vault of the defendant bank, where she had deposited her jewellery, worth GDR 408,895,000 17 18 19
FEK A, 169. FEK A, 232. ChrID 2006, 974.
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(€ 1,199,985.33). On 21 December 1992 thieves broke into the bank and stole, amongst others, the plaintiff’s jewellery. The plaintiff asserted that the theft of her jewellery was owed to the lack of the agreed quality of the lease for which the bank had vouched, namely to ensure that the jewellery would be safely kept, and to the culpable behaviour of the bank’s organs by which the said contractual obligation was breached. She claimed GDR 408,895,000 (€ 1,199,985.33) as damages according to the provisions on lease and, in case this legal basis was not accepted, according to the provisions on torts, as well as GDR 50,000,000 (€ 146,735.14) as moral harm. b) Judgment of the Court
According to the Greek Areios Pagos, the contract whereby a bank, in return for money, provides a natural person with the use of a safe for placing jewellery and other valuables bears the character of a lease contract. In particular, by virtue of the said contract, the bank undertakes to provide the lessee with the use of an area (safety-box), which, according to business usage, is suitable for safekeeping valuables against ordinary and daily dangers. This is the sole obligation undertaken by the bank by virtue of the lease contract and, accordingly, the bank’s liability is restricted to its fulfillment. The aforementioned obligation is fulfilled as long as the technical construction of the safety-boxes and of the vault in general, the formalities required for entering and exiting the vault, the guarding of the place (with alarm, guards, etc.) are planned in a way as to comply with the safety terms which have been established in banking practice and, furthermore, as long as they, in fact, function according to plan. The lessee aims at the suitability of the vault and safe for safe-keeping valuables and the lessor vouches for this, having made the said suitability an implied term of the contract. If the said suitability is lacking, the lessee is entitled to exercise the rights provided by art. 577 GCC, including the right to ask for damages for non-performance.
12
The Court also repeated its well-established jurisprudence that when the culpable prejudicial act or omission which constitutes a violation of the contractual obligations is in itself, i.e. without the contractual relation, unlawful as contrary to the general duty of “not culpably damaging another” imposed by art. 914 GCC, two liabilities – contractual and tortious – are established (AP 967/1973). However, the Court concluded that in the present case a delictual liability could not be substantiated, because the culpable behaviour attributed to the organs and employees of the bank, i.e. the alleged violation of the contractual obligation to ensure that the plaintiff’s jewellery would be safely kept, would not be illegal without the contractual relationship from which such obligation stems. According to the Court, if a contractual relationship between the litigants had not existed, there could have been no discussion of a behaviour contravening the general rule of art. 914 GCC and thus generating an obligation for damages.
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c) Commentary
14
Though it may be argued that the specific provisions governing the violation of contractual obligations (art. 330, 335 ff., 362 ff., 382 ff. of the GCC), as special provisions, prevail over those regarding tortious liability and they do not concur with them (principle of “non cumul”), the Greek jurisprudence adopts the principle of “free concurrence of claims”.20 According to this principle, when the act or omission which constitutes the contractual non-performance is simultaneously and in itself unlawful, the two liabilities, delictual and contractual, concur;21 the relative claims are submitted to different prescription periods depending on the different legal basis.
15
A behaviour is unlawful not only when it contravenes a provision of the law, but also when it is contrary to the unwritten rules of prudence and diligence, to be expected from all members of society, when acting. Such unwritten rules of behaviour are dictated either by explicit provisions of the GCC (art. 281 and 288) or by the general spirit of the legislation and the need of each member of society to expect a minimum standard of care from other members of society. This principle of prudence and diligence obliges members of society not to provoke damage to somebody else culpably.22 When a contractual non-performance is not in itself unlawful, i.e. it is not contrary to this general duty of “not culpably damaging another”, which is imposed by law, non-concurrence of contractual and delictual liability exists; in such a case only the provisions regarding the violation of contractual obligations apply23. The present case is an example of such non-concurrence of claims; according to the Supreme Court, had it not been for the contract with the lessee of the safety-box24, the bank would not have contravened the general duty of “not culpably damaging another”; no tort would have been committed by the bank, obliging it to pay damages and no delictual liability exists.
16
It has to be noted here that when the two liabilities, delictual and contractual, concur, the majority of Greek scholars consider that it is more correct dogmatically to accept that not two independent claims are born (An20
21
22
23 24
For the disadvantages of the free concurrence of claims see, among others, P. Kornilakis, Law of Obligations, Special Part, I (2002) § 79 4 IIβ, 463 f. See relatively Kornilakis (fn. 20) § 79 4, 461 ff., where also (462, fn. 3) reference to the abundant relative jurisprudence is made; M. Stathopoulos, Contract Law in Hellas (in English) (1995) § 41; id., Law of Obligations, General Part (2004) § 15 no. 10. See also AP 895/2004 ChrID 2004, 1009; 1145/2003 EllDni 45, 458 = DEE 10, 1179 = EEmpD 2004, 819 = ChrID 2004, 55 cmt. by El. Kastrissios; 1538/2002, published at NOMOS; 836/2002 DEE 8, 1267 = ChrID 2002, 599 f. followed by a note of E. Nezeriti; 587/2002 ChrID 2002, 605. For the general obligation of prudence and diligence see, among others, P. Filios, Law of Obligations – Special Part (1998) § 164 E, 23 ff; Ap. Georgiadis in: Ap. Georgiadis/M. Stathopoulos (eds.), Civil Code (1982) art. 914, no. 29; Kornilakis (fn. 20) § 84 3 II, 492 ff.; M. Stathopoulos, Law of Obligations – General Part (3rd ed. 1998) § 15 IV 3, 302 f. See Stathopoulos (fn. 21), id. (fn. 21) § 15 no. 11. For the legal nature and characteristics of the lease of a safety-box in a bank see P. Papanikolaou, The exculpatory clause on the liability of the Bank in the case of the big “rififi” (1995) = Kritiki Epitheorisi Nomikis Theorias kai Praxis (KritE, Critical Review of Legal Theory and Praxis) 1 (1995) 131 ff.
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spruchskonkurrenz) but only one, founded on two different legal bases (Anspruchsnormenkonkurrenz).25 There are no important practical reasons, however, that dictate this choice.26 2. AP 1787/2006:27 Unlawfulness. The Protective Scope of the Rule of Law a) Brief Summary of the Facts
According to the terms of a contract between the Greek State, the first defendant, and the joint venture “O.M’’, the third defendant, the latter undertook to construct the Athens underground (“metro”). The said contract was ratified by the law 1955/1991, thus having the force of law; from the date the said law entered into force the Greek State was substituted in all its rights and obligations by the company “A.M. S.A.’’, the second defendant, which was responsible for the coordination of the entire work. According to art. 31 and 32 of the above contract, ratified by law, all of the above were obliged to ensure the unimpeded approach of cars to immovables which fronted onto the sites of work.
17
The plaintiff, usufructuary of an immovable located in Athens which was rented to third parties as a car repair shop, filed an action against the above defendants alleging that the works undertaken were in violation of the above articles, which were also meant to protect her personal interest, as they restricted the access to her immovable from the main avenue for 17 months, thus causing her both positive and negative damage amounting to GDR 14,400,000 (€ 42,259.72).
18
b) Judgment of the Court
The Court of Appeal stated in its judgment that the above mentioned articles of the contract indeed intended to primarily protect the general interest and secondly the individual interest, not excluding the interest of the plaintiff. However, from the presented facts the Court derived that there was no violation of art. 914 GCC and no illegal behaviour on the part of the defendants as the latter allowed access to the immovable of the plaintiff from secondary streets, by means of diversions and interdictions of parking they took care of.
19
The Greek Areios Pagos held that the Court of Appeal did not violate the law when, among others, it considered that, according to art. 914 GCC, the damage caused to the victim by an unlawful act is illegal when the tortfeasor’s act vio-
20
25
26 27
For the advantages of the said view, mainly expressed by Ap. Georgiadis, Die Anspruchskonkurrenz im Zivilrecht und Zivilprozeßrecht (1968), see, from the most recent bibliography, Kornilakis (fn. 20) § 79 4 II 3, 465 f.; Stathopoulos (fn. 21) § 15, no. 12. See also the article of St. Kousoulis, Concurrence of the Contractual and Delictual Liability, in: M. Stathopoulos/K. Beis/Ph. Doris/I. Karakostas (eds.), Essays in Honour of Ap. Georgiadis (2006) vol. I, 441 ff., which is presented under infra no. 76. Stathopoulos (fn. 21) § 15, no. 13. Not published. Similarly AP 1788/2006, not published.
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lates a private right of the victim or at least an individual interest of his, which was intended to be protected by the provision breached. The Greek Areios Pagos stressed that, in case of violation of an individual interest, it is required that the provision culpably breached aims at protecting the violated individual interest or, at least, such provision aims at protecting, among other interests, the violated individual interest as well. In the particular case, however, though the provisions invoked were such, i.e. aimed at protecting individual interests as well, the defendants did not breach them in a manner which showed an illegal behaviour within the meaning of art. 914 GCC. The decision of the Court of Appeal was confirmed. c) Commentary
21
Repeatedly over the last few years the Court of Cassation has mentioned in its judgments28 that from the provision of art. 914 of the GCC it derives that a person is liable for compensation not only if he has illegally and through his fault caused prejudice to another by offending a private right, such as ownership, but also by offending a private interest. However, in order that there is a claim for compensation in the case that a private interest is offended, the provisions of the law that are violated should be, according to its phrasing or the purpose of the legislator, protective of the offended private interest or at least protective of that interest as well. Consequently, the violation of a provision that was exclusively set for the protection of the public interest does not give rise to a right for compensation, not even in the case that through the said provision the private interest is served indirectly if the legislator did not intend to protect such a private interest. The issue of whether a provision of law only protects the general interest or it also protects a private interest can be answered only after interpretation of the law in question;29 no firm criteria exist for such an interpretation.
22
It is without doubt that the Greek Areios Pagos adopts the “theory of the protective scope of the rule of law”,30 which, in order to restrict tort liability, stipulates that not any violation of a rule of law constitutes an illegal act entailing an obligation for damages. According to this theory, there are rules that aim only at the protection of certain goods; in case of violation of the said rules resulting in an offence of goods, other than the ones which are to be protected, the 28
29
30
See, among others, Areios Pagos 175/2005 ChrID 2005, 616; 508/2003 ChrID 2003, 709 f.; 900/2003 EllDni 44, 1276 = ArcN 2004, 76, followed by a note of Ch. Nikolaidis. For a brief summary of the facts and the judgment of the said decisions in English see E. Dacoronia in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2005 (2006) 308 f., no. 9 ff.; id. (fn. 11) 213 ff., no. 6 ff. See relatively Filios (fn. 22) § 165 C, 32–34; Ap. Georgiadis, Law of Obligations – General Part (1999) § 60, no. 18 ff; id. (fn. 22) art. 914, no. 50, 54; Kornilakis (fn. 20) § 84 3 II, 487, with reference also to the relative German literature in fn. 12; Stathopoulos (fn. 22) § 15 IV 3, 300. About the “theory of the protective scope of the rule of law” in Greece see I. Deliyannis/P. Kornilakis, Law of Obligations, Special Part III (1992) § 353, 12; P. Filios, Law of Obligations, General Part (2004) § 93, 95; Georgiadis (fn. 29) § 10, no. 34; Kornilakis (fn. 20) § 89 8II, 523 ff.; Stathopoulos (fn. 21) § 8, no. 132 ff. and § 15, no. 34; M. Stathopoulos in: Ap. Georgiadis/M. Stathopoulos (eds.), Civil Code (1979) art. 297–298, no. 60 ff.
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person owning these goods is not entitled to invoke the rule and its violation and ask for damages based on tort liability. 3. AP 219/2006:31 Force Majeure (Vis Major) a) Brief Summary of the Facts
On 26 June 2000, a car collided with a train at an unguarded, lacking movable barriers, level crossing of the railway with a public road, when the driver of the car, while crossing the rails, was overcome by panic when he realised that a train was coming and instead of accelerating he stopped his car. Though the train driver tried to brake, nevertheless, the train fiercely hit the front right part of the car, whilst the two front axles of the train derailed. The Court of Appeal held that the accident was due, at a percentage of 60%, to the negligent behaviour of the car driver, who did not display the required attention, as he, despite the stop sign and the four signs averting the approach to an unguarded level crossing, neither stopped at the crossing to ascertain that no train was approaching nor did he pay the appropriate attention to the continuous whistling of the coming train and, at a percentage of 40%, to the negligent behaviour of the Organisation of Greek Railways (OSE), the competent organs of which had not placed protective barriers at the crossing in violation of art. 3 of the Royal Decree 30.11.1911, of art. 3 of the Decree 19.7.1928 and of art. 8 § 2 and 10 § 3 of the Highway Code (L. 2696/1999).
23
b) Judgment of the Court
The Supreme Court upheld the decision of the Court of Appeal. It ruled that an omission can also lead to an obligation to pay damages according to art. 914 GCC, as long as the tortfeasor was obliged to act either by law, by contract or by good faith, according to the prevailing social understanding, and, in particular, when he himself had created a perilous situation, likely to cause damage to third parties. In such a case, the person obliged to act cannot invoke in his defence the economic impossibility of taking the measures required to avert danger, in particular when the danger for third persons is inherent to his professional activity. Accordingly, the allegation of OSE that it should be exempted from liability because the Greek State did not provide OSE with the economic means that are indispensable in order to protect railway crossings is of no legal importance, because, on the one hand, OSE’s relations with the Greek State are inter alios acta as regards the car driver, and, on the other, the lack of economic means does not constitute a legal reason of exemption from liability.
24
c) Commentary
Force majeure (vis maior), which basically includes the extreme cases of those events which cannot be averted by human powers, or, at least, those cases which are more difficult to avert than other chance events,32 constitutes a ground that 31 32
NoV 54, 828. For force majeure and the theories taught for the delimitation of the cases that fall under this category see, among others, Stathopoulos (fn. 21) no. 258–259; id. (fn. 21) § 6, no. 97 ff.
25
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can be invoked by the defendant in order to avoid liability, as in such cases there is lack of free will.33 OSE actually invoked force majeure, i.e. lack of wilful conduct or negligence, by alleging that it should be exempted from liability because the Greek State did not provide the economic means needed in order to place protective barriers at the railway crossings. As the category of chance events for which the term force majeure (vis maior) is used basically includes the extreme cases of those events which cannot be averted by human powers, or, at least, of which it is more difficult to avert than other chance events, we are of the view that the Court was right in concluding that the lack of economic means does not constitute a legal reason for exemption from liability. 4. AP 1749/2006:34 Distinction of Tortious from Penal Liability Regarding the Means of Proof a) Brief Summary of the Facts
26
On 26 March 2001 driver A tried recklessly and with a limited field of visibility to successively overtake other cars on the road, which resulted in a head-on collision with the car driven by B in the opposite traffic lane and the death of the latter. A urine test ascertained that A was at the time of the accident under the influence of toxic substances. A, who denied being under the influence of toxic substances, contested the validity of the examination, arguing that the terms and conditions provided by the relevant Joint Ministerial Decisions (JMD) as regards the way of ascertaining the use of toxic substances by drivers had not been followed. b) Judgment of the Court
27
According to the Supreme Court, the provisions of the Joint Ministerial Decision that define the legal procedure to be followed in order to ascertain at a penal trial whether the culprit was under the influence of toxic substances when the crime was committed do not constitute a necessary ground for the relevant civil action. This is the reason why the fact that the driver was at the time of the accident under the influence of toxic substances may be deduced by other means of proof, such as the manner of talking, the smell of alcohol, the way of walking, etc. which are mentioned in the court decision. Reports of blood and alcohol tests taken from the defendant driver, without conforming to the formalities stipulated by the JMD, may be taken into consideration by civil courts as judicial presumptions according to art. 336 GCCP. The Supreme Court concluded that the application of the JMD does not constitute an exclusive means of proving that the driver who caused the accident was under the influence of toxic substances; other means of proof can also be taken into consideration and assessed freely by the Court, such as witnesses, the refusal of the driver of the car to agree to a blood test, etc.
33 34
Kornilakis (fn. 20) § 87 6 II 1, 513. Published at data basis NOMOS. Similarly AP 1750/2006, not published.
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c) Commentary
The above decision is an example of the difference between tortious and penal liability. It is well known that these two liabilities have some similarities but differ in their aims; penal liability aims at the public interest as well as at the general and special prevention, while tortious civil liability serves the private interest of the victim and aims at giving the latter full damages. Because of this, the civil judge has more freedom in using and assessing the means of proof than the penal judge.
28
5. AP 29/2006:35 Liability of the Representative Organs of Legal Persons a) Brief Summary of the Facts
On 27 July 2001 the defendant, a legal representative of a corporation, issued to the order of the plaintiff a post-dated cheque for GDR 4,000,000 (€ 11,738.81), showing as date of issue 31 August 2001; the said cheque bore, at the place of the issuer, the signature of the defendant under the name of the corporation. On that date (31 August 2001) the plaintiff, as the legal bearer of the cheque, presented it for payment at the paying bank, where it was not honoured for lack of funds. As a result the plaintiff suffered damage equal to the amount of the cheque. When the defendant issued the cheque on behalf of the corporation, he knew that the corporation did not have the available funds required for its payment neither at the effective date of issue nor at the date shown on the cheque as issue date. The Court of Appeal accepted the plaintiff’s claim and obliged the defendant to pay the amount of the cheque to the plaintiff for the damage she sustained. The case was brought before the Supreme Court on the ground that, at the time the cheque was presented for payment, the corporation had already gone bankrupt, thus there was no fault in the non-payment of the cheque, and no obligation for damages could arise according to art. 914 of the GCC.
29
b) Judgment of the Court
The Supreme Court held that, according to art. 71 GCC, the legal person is held liable for the acts or omissions of the organs that represent it, as long as the acts or omissions took place in the course of the performance of their duties. In case the act or omission of the competent organ is culpable and creates an obligation for remuneration, the organ is also held liable jointly and severally with the legal person. As far as corporations are concerned, the directors cannot be held personally liable for the debts of the company, but the principle of their non-liability is set aside and does not apply when fault can be attributed to them, in which case they are held personally liable according to the general provisions on torts (art. 914 ff. GCC). Accordingly, in regard to the issue of a cheque without sufficient funds, the person liable to redress the damage caused to the bearer is, apart from the legal person, its legal representative who signed the cheque while knowing that there were no available funds at the time of either the issue or the payment (AP 25/2000). The Court added that 35
ChrID 2006, 410 = DEE 12, 930 = EllDni 47, 1031.
30
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the bankruptcy of the corporation has no influence on the liability of its legal representative, who acted culpably and committed an individual tort in issuing the cheque while knowing that there were no available funds. c) Commentary
31
Ιn the note by K. Christakakou that follows the decision it is pointed out that the present case deals with the issue of the joint and several liability of the competent organ of a legal person and of the legal person itself according to art. 71 GCC and reference is made to the abundant jurisprudence on the subject matter. It is also noted that the liability of the competent organ is established, according to the prevailing view and in line with the above decision, only if fault can be attributed to such person, irrespectively of whether the liability of the legal person itself is strict, based on risk or on the fault of its organ. 6. Court of First Instance of Thessaloniki 23238/2006:36 Protection of the Personality a) Brief Summary of the Facts
32
The plaintiff complains that on 8 September 2003 he was denied entry into a bar-restaurant, owned by the defendant company. The allegations of the defendant company that the bar-restaurant was at that time full and that the entry was also denied to others due to reasons of safety were not proven, because while the plaintiff was at the entrance to the premises, other clients were allowed to enter the bar. b) Judgment of the Court
33
The Court held that the prohibition to enter a public building, where at that time there was no private function, constituted a discrimination against the plaintiff, diminishing his personality. Therefore, the act of the defendant company constitutes an unlawful act (art. 914 GCC), illegally offends the personality of the plaintiff (art. 57 and 59 GCC), which encompasses the honour of the person, which is reflected in the idea and respect the others have for him, and a claim for damages for moral harm can be well established.
34
According to the Court, for the application of art. 57 and 59 GCC, the following conditions have to be met: a) an offence to the right to the personality must have taken place, b) the offence must be “illegal”; such illegal offence exists when the offence takes place without the offender having a relative right or when he exercises a right which is from the point of view of the legal order either of a minor importance, or it is exercised under circumstances that render its exercise abusive according to art. 281 GCC or 25 § 3 of the Greek Constitution. For an amount of money to be awarded, however, the offence must be of importance and there must be fault on the part of the offending person. Accordingly, in the present case, the Court awarded € 1,000 as compensation 36
Armenopoulos (Arm) 60, 1402 = DEE 12, 1174.
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for moral harm, after taking into consideration the kind and gravity of the offence and the social and economic status of the litigant parties. c) Commentary
In the commentary following the above decision, S. Koumanis points out that, though the Court uses the term “public” building, it means literally a building where services are provided to the public. These “services to the public” constitute a particular evaluating element, substantially taken into consideration by the Court when deciding whether the prohibition of entry can be regarded as an offence to the personality, given that the prohibition to enter a place intended for “private” use is judged differently from the hindrance in using services offered to the public.
35
Furthermore, the author notes that the offence to the right to the personality also constitutes an unlawful act, unless there are reasons excluding the illegal character of the offence. This occurs when, amongst others, the offence is the result of the exercise of a legal right, in which case it is required that the conflicting interests are balanced. However, the freedom to choose one’s contracting party is not an adequate reason for excluding illegality, because entertainment, being a good connected to personality, cannot be prohibited, but it can merely be restricted only if special reasons, applicable to everyone without exception, can justify the restriction. Finally, the writer approves of the court’s judgment that the unjustified prohibition to enter a building intended for public use constitutes a tort, as it is an illegal and culpable act which causes damage to non-material goods.
36
7. AP 132/2006:37 Non-Pecuniary Damages and the Principle of Proportionality a) Brief Summary of the Facts
While A, her sister B, and a friend of theirs, C, were at a notary’s office in order to receive legal documents, A made suggestions in a rude way to the notary as to how the legal documents should be drafted. The notary’s husband, D, who was a lawyer and happened to be present at the scene, stood up for his wife and told A that she could not make recommendations to the notary as to the execution of her tasks. When hearing this, B, unjustifiably infuriated, verbally attacked the lawyer, using inappropriate expressions. D, astonished by the abuse that was being hurled at him, attempted to get B out of the office by pushing her towards the exit, without harming her in any way. A filed a report against D at the Lawyers’ Association, falsely stating that he had hit her sister and that he had threatened and insulted both of them. C, being instigated by A and B, also stated on oath that the lawyer had injured B. The Court of Appeal held that the above incident, as described by A and C, was false and slanderous, that both of 37
NoV 54, 825 = ChrID 2006, 409 = Arm 60, 757 = EllDni 47, 740 = ArcN 2006, 662 = Dike International 2006, 876 = EpiskED 2006, 96.
37
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them were aware of its untruthfulness and that it was spread with the intent to damage D’s honour and reputation. The Court of Appeal concluded that A, B and C’s illegal and culpable behaviour resulted in an offence to D’s personality, causing him moral harm, for the restoration of which the Court ordered A to pay € 53,000, B € 51,000 and C € 6,000. A, B and C lodged an appeal before the Supreme Court. b) Judgment of the Court
38
The Greek Areios Pagos confirmed once again that from art. 932 GCC it derives that the court of substance is given the discretionary power, after assessment of the facts that the litigants present, such as the degree of fault, the kind of offence, the economic and social status of the parties, etc. and on the basis of the rules of ordinary experience and reason, to adjudicate or not an amount of money if it considers that moral harm or suffering and pain has been provoked and to determine the amount it considers reasonable. The Greek Areios Pagos also repeated that the extent of non-pecuniary damages is decided by the courts of substance and that their decision is not subject to the control of the Supreme Court because it is based on consideration of facts (art. 561 § 1 GCCP) and not on consideration of law.
39
However, it is noted in the present case that the Supreme Court may review the decision of the lower courts in order to examine whether the principle of proportionality, which is explicitly dictated by art. 25 § 1 of the revised Greek Constitution,38 has been violated. In particular, the principle of proportionality imposes on every state organ, including the judiciary, when balancing the rights and obligations of the parties, to always take into consideration the correlation of the means used to achieve the purpose aimed at (see AP 43/2005 (full bench),39 cf. the decision of the European Court of Human Rights of 3 December 2002: Berger against France). Accordingly the courts, when defining the amount of non-pecuniary damages, should take into consideration that the tortious behaviour is a behaviour not approved by law, thus low amounts should not be adjudicated; on the other hand, the courts must not reach judgments which result in the economic ruin of one party and in the excessive enrichment of the other, because in such a case they would go beyond the aim of the legislator, which is the restoration of peace in society. Accordingly, the Supreme Court noted that the amounts adjudicated as 38
39
For the abundant Greek bibliography on the principle of proportionality and the way the Supreme Court applies this principle in civil cases see Ph. Doris, The principle of proportionality in the field of regulation of private law relations and in particular in Private Law, Honorary Volume to Council of the State – 75 years (2004) 229 ff.; St. Matthias, The field of operation of the principle of proportionality, EllDni 47, 1 ff; P. Papanikolaou, Constitution and Autonomy of the Civil Law (2006) no. 101 ff., who criticizes the “worship” of the constitutional principle of proportionality and points out that there is no need for such an approach as the principle of proportionality was known to the Greek Civil Law even before the Revision of the Constitution in 2001, pervading many provisions of the Greek Civil Code (and in particular art. 281) as a common element of their ratio legis. EllDni 46, 1649 = DEE 12, 681. Similarly AP 44/2005 (full bench) and 45/2005 (full bench).
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moral harm in the present case were exceptionally high, thus violating the principle of proportionality. c) Commentary
The above-mentioned decision of the Supreme Court has generated a number of approving as well as disapproving comments, the latter by the Vice Public Prosecutor of the Supreme Court, A. Zygouras, noting40 that it is only up to the legislator to observe and abide by the principle of proportionality; the judiciary and the administration should merely examine whether this principle has been abided by and, if not, they should deny the application of the law as unconstitutional insomuch as the latter imposes a disproportionate restriction on the civil right; if the judiciary and the administration were to directly apply the principle of proportionality, they would usurp the legislative power. The Vice Public Prosecutor concluded that the solution given by the Supreme Court in the present case will cause uncertainty in law and will leave the impression that Areios Pagos is not a court of cassation but a regular appellate court of third degree. Of the same view is also the member of the Greek Academy and Emeritus Professor of Law G. Mitsopoulos.41
40
On the other hand, the decision has found its supporters among lawyers and academics, who have commented on it in various ways. In one of the comments42 it is noted that even though in the present case the principle of proportionality led to a quantitative reduction of damages adjudicated, it creates the reasonable conviction that it will also apply as regards the increase of the amount, when required by circumstances, that the said decision gives a substantial content to the principle of proportionality because of its constitutional predominance and that it innovates inasmuch as it subjects the judgment of the lower courts, as regards the amount of non-pecuniary damages, to the control of the Supreme Court, expanding thus the ambit of application of art. 559 § 1 GCCP. In another comment43 it is mentioned that the principle of proportionality serves as a new general clause in the area of civil law, which specifies the principle of good faith provided by art. 288 GCC, and, as far as the adjudication of nonpecuniary damages is concerned, leads to a fairer determination of the amount adjudicated. Moreover, as the principle of proportionality is a criterion for the exercise of the discretionary power of the Court, and the application of this principle is subject to the control of the Supreme Court, the above decision certainly leads to a more just exercise of the courts’ discretionary power over the determination of non-pecuniary damages.44
41
40 41 42 43 44
Arm 60, 761 f. = Dike International 2006, 882 ff. = EllDni 47, 742 f. See infra no. 79. S. Lalas, NoV 54, 827. K. Pamboukis, EpiskED 2006, 103 ff. See also Lalas, NoV 54, 827. See also Ch. Nikolaidis, ArcN 2006, 666.
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8. AP 122/2006,45 526/2006,46 670/2006,47 1874/2006:48 Additional Compensation for Disfiguration (art. 931 GCC) a) Brief Summary of the Facts
42
AP 122/2006: The plaintiff was a passenger in the back seat of a car which, due to the negligence of the driver, diverted from its course, entered a field and crashed into a tree. As a result of the impact, the car ricocheted backwards for a distance of approximately 15 metres. The plaintiff, who had been severely injured and had lost consciousness, was removed from the completely destroyed car by firemen and policemen. She suffered a corporal and mental shock and was transferred to hospital. As a result of the car accident she lost her sense of balance, she had to wear a collar to support her head and her cervical vertebra, she suffered and still suffers from headaches, dizziness, numbness and temporary paralysis in her upper and lower limbs. The doctors recommended surgery, refused though to perform it due to the uncertain results that would follow. On account of the above her future will be unfavourably influenced, as she will gradually suffer from memory loss, she is not allowed to become pregnant for there is a high probability of total paralysis, while surgery with a negative outcome would bring about permanent disability. Moreover, due to the health problems she faces, her fiancé called off their engagement and the marriage, for which she had been preparing, will never take place. The partial paralysis from which she suffers will deprive her of social contacts and relations with the opposite sex, diminish her chances of marrying and the possibility of improving her social position. Therefore, she sought GDR 8,000,000 (€ 23,477.62) as damages according to art. 931 GCC.
43
AP 526/2006: The plaintiff was the victim of a car accident, due to which she was severely injured and had to undergo multiple operations. She argues that she still suffers from permanent partial disablement (her right foot is disfigured and atrophied), due to which her professional, economic and social development is hindered. Accordingly, she claims damages provided by art. 931 GCC.
44
AP 670/2006: The plaintiff alleged that, because of the accident, he had almost entirely lost the sight in his right eye and that, as a result he has become fully unable to exercise his profession as a mechanic in the merchant navy, given that, according to the law, it is impossible for him to attain any kind of diploma or certificate for the position of the mechanic with merely 1/10 of vision in his right eye. The consequences of losing his sight will affect his life forever, and especially his social and professional future, in light of his young age (he is only 21 years old). He stressed that he has suffered greatly due to the intolerable pain and to the complicated surgery performed on his eye and that he suffers from mental breakdown, from which he will never recover. 45 46 47 48
ChrID 2006, 504. EllDni 47, 998. ChrID 2006, 698 = NoV 54, 1469. Not published.
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AP 1874/2006: The plaintiff argued that, as a result of the accident, she suffers from severe traumas, which restrict her ability to move. She is regarded as permanently disabled by her insurance fund, which provides her with a disability pension. Furthermore, she closed down her business and gave up her artistic activities as a solo performer in a choir and as a dancer in a cultural society. She claimed that, as a result of the accident, she is deprived of all social contacts and relations with her spouse and children; she can neither lead a normal life nor enhance her social-economic position due to her inability to work and that, therefore, she is entitled to damages according to art. 931 GCC.
45
b) Judgment of the Court
AP 122/2006, 526/2006: According to the Court, it derives from art. 931 GCC combined with art. 298, 299, 914, 929 and 932 GCC that the disablement or disfiguration caused to the victim, irrespective of sex, in addition to the affect it can have on claims based on art. 929 and 932 GCC, can also establish an independent claim for compensation if it affects the victim’s future. Certainty as to the unfavourable influence on the victim’s future is not required; the mere possibility of influence according to the usual course of events suffices. Art. 931 GCC introduces a claim for compensation that cannot be covered by art. 929 and 932 GCC. Therefore, for the establishment of the independent claim of art. 931 GCC special circumstances, other than those required for the establishment of the claims based on art. 929 and 932 GCC, are required. These special circumstances have to determine the reasons why and ways in which the economic future of the victim will be unfavourably affected.49
46
Areios Pagos, in case 122/2006, holding that sufficient facts to support the claim of art. 931 GCC had been presented, overruled the decision of the Appellate Court, which had rejected the lawsuit as vague, on the ground that no special circumstances to depict the specific ways and means her future will be affected were presented. On the contrary, in case 526/2006, the Supreme Court upheld the judgment of the Court of Appeal, which had rejected the claim holding that it was proven that the professional, economic and social development of the victim was not hindered as a result of the accident, given that the condition of her leg ameliorated after the operations to a degree that allowed her to exercise her previous profession as an advisor in the textile industry.
47
AP 670/2006, 1874/2006: In both cases, the Supreme Court overruled the judgment of the Court of Appeal, which, also in both cases, had rejected the lawsuits as vague on the ground that the plaintiffs did not present facts beyond those required by art. 929 and 932 GCC, so as to determine the reasons why and ways in which the disability affected their future.
48
49
Similarly AP 197/2004 ChrID 2004, 517 = EllDni 45, 1349 (for a brief summary in English of the facts and the judgment of the said decision see Dacoronia (fn. 12) 338 f., no. 39 ff.; 289/2004 Efimeris Ellinon Nomikon (EEN, Journal of Greek Jurists) 2004, 566).
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49
According to Areios Pagos, with the term “invalidity” in art. 931 GCC the legislator meant a certain lack of the corporal, mental or psychical integrity of a person, with the term “disfiguration” any substantial distortion of the external appearance of the person, which is determined by the notions of life and not necessarily by medical science and with the term “future” the professional, economic and social evolution of the person. Certainty of a negative influence to the future of the person is not required. A simple possibility, according to the usual course of things, suffices. In the professional-economic field, the invalidity or disfiguration of the person, according to the dictations of common usage, constitutes a negative element in everyday competition for such a person’s economic evolution and development.
50
These negative consequences are, according to the Supreme Court, even more intense in periods of economic difficulties in the business market.50 Those who suffer from an invalidity or disfiguration are at a disadvantage and therefore they bear a greater risk than their healthy colleagues of finding themselves without a job. The monetary performance provided by art. 931 GCC does not constitute damages, given that damages as a term are connected to the invocation and proof of material damage, i.e. of a difference between the patrimonial status after the damaging event and that which would have existed without it. Besides, the inability to work as a consequence of the invalidity or disfiguration, as long as such inability causes material damage, constitutes a basis for the claim provided by art. 929 GCC (claim for loss of profit). However, the invalidity or disfiguration as such may not necessarily cause pecuniary damage to the victim of a tort. This is the case of a minor who has not entered the employment market; he cannot yet invoke material damage caused by the invalidity or disfiguration, as it cannot be predicted that the invalidity or disfiguration will cause him a specific pecuniary damage. It is certain, however, that the invalidity or disfiguration will definitely have a negative impact on the minor’s social and economic development, depending on its degree and the specific circumstances (age, sex, inclinations, and wishes of the victim). Given that such a negative impact is certain, there is no need to specify how the invalidity or disfiguration will particularly influence the minor’s life and the consequences such an invalidity or disfiguration will have on the social and economic future of the victim. What is crucial and most important is the fact of the invalidity or disfiguration as damage to one’s body or health, being an independent legal good, which is also constitutionally protected according to art. 21 §§ 3, 6 of the Greek Constitution, not only as far as the relations of the citizens towards the State are concerned, but also as regards the relations of the citizens inter se. This protection is not necessarily connected with the inability to acquire economic profits or advantages.
51
The Court concluded from the foregoing that art. 931 GCC provides for the adjudication of a reasonable compensation exactly because of the invalidity or 50
Same as AP 1073/2001 ChrID 2001, 700 f., followed by a note of G. Iatrou, ChrID 2001, 701 ff. (for a brief summary in English of the facts and the judgment of the said decision see E. Dacoronia in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2001 (2002) 279 f., no. 36 ff.).
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disfiguration itself; a connection to a specific material damage is not needed, leaving aside that such a material damage cannot be defined either. The amount of the reasonable compensation adjudicated according to art. 931 GCC is determined by the type and consequences of the invalidity or disfiguration on the one hand and by the age of the victim on the other. The Court noted that the claim of art. 931 GCC is different from: a) the claim for loss of profit provided in art. 929 GCC, which is necessarily connected to invoking and proving specific material damage caused by the victim’s inability to work and, b) the compensation for moral harm provided by art. 932 GCC. All of the above claims can be exercised either cumulatively or individually, since they are independent and the establishment of one does not necessarily presuppose the existence of one of the others51. c) Commentary
With the above mentioned decisions the Supreme Court confirms its opinion already expressed in a string of decisions, according to which art. 931 GCC introduces an independent claim for the compensation of a future pecuniary damage, for the establishment of which special circumstances, other than those required for the establishment of the claims based on art. 929 and 932 GCC, are required. These special circumstances have to determine how the disablement or disfiguration of the victim affects his future, that the damages asked for are the specific result of the disablement and how this specific result would affect the professional, economic and social future of the victim. The prevailing view in theory,52 however, considers that art. 931 GCC does not introduce an independent claim for the compensation of a future pecuniary damage, other than those covered by art. 929 or art. 932 GCC, given that on the basis of these two articles full damages can be obtained. According to this view, art. 931 GCC has only an instructive character, intending to instruct the judge to take particular consideration of the disablement or disfiguration when determining the amount of damages to be adjudicated for pecuniary damage or moral harm.53
52
The Vice President of the Supreme Court, Ath. Kritikos54, shares the view of the jurisprudence, but he is of the opinion that the Court asks too much in order not to consider the lawsuit based on art. 931 GCC vague. According to him, it should suffice that the victim specifies and determines in the lawsuit the way the invalidity affects his future.
53
51 52
53
54
Similarly AP 2072/2006, not published. Expressed by K. Beis, Dike 1998, 281; Ph. Doris, NoV, 36; Georgiadis, Law of Obligations, § 62, no. 96; A. Vossinakis in: Ap. Georgiadis/M. Stathopoulos (eds.), Civil Code (1982) art. 931, no. 1. This view is also shared by Iatrou, in a note under AP 1073/2001 ChrID 2001, 700 ff. For the relevant doctrine and jurisprudence see (in English) Dacoronia (fn. 50) 279 f.; id. in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2002 (2003) 240–242; id. (fn. 12) 338 f. See in details infra no. 77, where also (no. 68) the article of G. Albouras on the subject matter is presented.
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9. AP 1735/2006:55 Notion of the Term “Family of the Victim” in art. 932 GCC a) Brief Summary of the Facts
54
On 7 May 2000, an unidentified car driver hit and mortally wounded A, who was standing at the end of the street, next to a bus-stop. A had cohabited out of marriage for over 20 years with B according to the customs of gypsies and they had a son, who had reached the age of 19 when the accident occurred. b) Judgment of the Court
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The Supreme Court overruled the judgment of the Court of Appeal, which, after taking into consideration, inter alia, the duration of the cohabitation, held that B had been closely connected to A and suffered from his loss. Accordingly, it adjudicated € 10,000 as compensation for pain and suffering to the partner of over 20 years of the deceased by analogously applying art. 932 sent. 3 GCC. The Supreme Court held that the notion of the term “family of the victim” is not specifically defined in art. 932 GCC, because the legislator did not wish to bind the judge by defining an institution, which by nature is unavoidably subjected to social differentiations over the course of time. Taking into consideration, however, that the provision aims at the relief of the moral pain of the persons who were closely connected with the deceased and suffered from his loss, regardless of whether they cohabited with him or not, the Court noted that the victim’s relatives by marriage of first degree, i.e. fathers and mothersin-law, sons and daughters-in-law, are included in the term “family of the victim”; other relatives by marriage such as brothers-in-law or nephews are not included.56 Areios Pagos justified its judgment by invoking art. 57 sent. 2 and 59 GCC, which exclusively define the persons entitled to demand the protection of the personality of a deceased and the adjudication of compensation for pain and suffering. These are the ascendants and descendants of the deceased, his spouse, his siblings and his testamentary heirs. In any case, it is a matter of fact, judged by the courts of substance whether the said persons, who are in principle entitled to compensation for pain and suffering, had indeed been closely connected with the deceased and suffered from his loss. Should it be ascertained that no ties of love and affection existed between them and the deceased, no compensation for pain and suffering is adjudicated (AP 21/2000 in full bench).
56
It follows from the foregoing that the persons who merely cohabited with the deceased, having no intention of getting married in the future, are not included in the term “family of the victim”. Neither does the law provide for compensation for pain and suffering to the cohabiting partner of the deceased nor can the provision of art. 932 GCC be applied by analogy. The Court stressed that 55 56
Not published. Cf. I. Spyridakis, note under AP 434/2005, Epitheorisi Dikaiou Idiotikis Asfaliseos (Epidikia, Review of Law of Private Insurance) 2005, 263, who considers that it would be more correct to exclude all in-laws.
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an opinion to the contrary would be contra legem and would overturn the constitutionally protected institution of marriage. Moreover, an application of the said provision of the GCC by analogy cannot be justified, as there is no gap to be filled in the law regarding the status of persons who cohabit. The term “free union”, i.e. the cohabitation of unmarried couples, was introduced by L. 1329/1983 in art. 1444 § 2 sent. 1 GCC as a ground for ceasing the right of alimony after divorce, i.e. as a sort of quasi penalty if the divorced spouse who was entitled to alimony lived with somebody else in free union. Furthermore, it derives from the combination of art. 1444 sent. 2, 1456, 1457, 1471, 1479, 1350 ff. and 1386 ff. GCC combined with art. 21 § 1 of the Greek Constitution, that even though the legislator was fully aware of the term “free union” even before 1983, it did not regulate legal matters stemming from the cohabitation of unmarried couples and did not introduce in Greece the institution of the socalled “registered relationships”, which is provided in certain Member States of the EU. Only when providing for medically assisted human reproduction and its consequences, did it introduce a few provisions which regulate matters indirectly connected to the “free union”, in order to protect the child born out of such a union. The institution of marriage is regulated and protected by the above mentioned provisions and by the Greek law system in general, while no equivalent or analogous protection of the cohabitation out of marriage is acknowledged. The two institutions differ not only in name, but in their very essence, because they have been created to cover different social needs. The cohabitation of unmarried couples, when no children are involved, is not recognized by Greek law, because no legal consequences are attached to it and, thus, it cannot be included in the notion of family, and is not protected, all the more because the people who choose to cohabit unmarried obviously do not wish to be subjected to legal regulations and obligations, and therefore it would be contradictory to seek only protection. The Supreme Court concluded that there is no similarity between the regulated and the non-regulated situation required for the analogous application of art. 932 sent. 3 GCC (see also AP 14/2004 in full bench).57 c) Commentary
Though Greek scholars have suggested for a long time58 that, according to the scope of art. 932 sent. 3 GCC, the term “family” should be interpreted broadly so as to include also the fiancé and the partner who cohabited in free union with the deceased or that at least art. 932 sent. 3 GCC should apply by analogy to the said persons even if they were not to be considered members of the fam57
58
ChrID 2004, 606 cmt. by E. Kounougeri-Manoledaki = NoV 53, 52 = ArcN 56 159. According to this decision art. 1471 § 2 sent. 2 GCC on the exclusion of the possibility to contest paternity when the husband has consented to the artificial insemination of his wife does not apply by analogy to persons cohabiting in free union. See I. Spyridakis, note under the Athens Court of Appeal 618/1976 NoV 24, 725. See also Georgiadis (fn. 22) art. 914, no. 27 ff.; Georgiadis (fn. 29) § 61, no. 21; Kornilakis (fn. 20) § 106 8 II, 651; K. Pantelidou, The notion of family in Article 932 sent. 3 CC, Arm 36, 410; St. Paterakis, Monetary compensation for non-pecuniary damage (2nd ed. 2001) 292 ff.; Stathopoulos (fn. 21) § 15, no. 105.
57
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ily in a broad sense, the Court of Cassation59 applied art. 932 sent. 3 GCC by analogy only for the fiancé. For the partner in free union a different approach is followed on the grounds mentioned in the above judgment, not allowing the application of art. 932 sent. 3 GCC not even by analogy to non-spouses.
58
The present decision is the second one of the Supreme Court within one year60 which repeats that the partner in free union of the deceased does not belong to the family of the deceased and cannot be compensated for pain and suffering. The Supreme Court with these two decisions, trying to safeguard the constitutionally protected institution of marriage, shows a rather old-fashioned face. In this particular case we are of the view that the underlying reasoning, though not expressed in the decision, must be that stated in the decision 2971/1990 of the Athens Court of Appeal.61 According to this particular decision, the person who cohabits with another, without being married, in accordance with gypsy custom, and passes away in an accident, is not included in the family of the victim; thus he is not entitled to compensation for pain and suffering, because the custom of free cohabitation of gypsies cannot abolish the rules that regulate the institution of marriage and which are of public order (art. 3, 1359 ff. GCC). 10. AP 603/2006,62 1698/2006:63 Prescription (art. 937 GCC) a) Brief Summary of the Facts
59
AP 603/2006: On 23 March 1999, i.e. after almost five years had already elapsed from the day (23 April 1994) A lost his life in a car accident, his relatives filed an action against the Auxiliary Fund, which was created for the insurance of liability arising out of motor accidents (hereinafter Auxiliary Fund), claiming non-pecuniary damages for A’s death. The Court of First Instance held that the claim was filed after the two-year prescription period provided by art. 19 § 2 of L. 489/1976 “on the compulsory insurance of the civil liability arising out of motor accidents”64 and thus rejected the lawsuit. The Court of Appeal however reversed the judgment of the Court of First Instance, holding that: a) until 1 April 1997 the claim could not have been judicially pursued, because until then the plaintiffs were unaware that the death of their relative was the result of the negligent behaviour of the driver of the uninsured car and,
59 60
61 62 63 64
AP 1071/2002 ChrID 2002, 909 followed by a note of E. Nezeriti. The first one was AP 434/2005 ChrID 2005, 892 cmt. by N. Koumoutzis = EllDni 46, 1060 = EEN 2005, 676 = Epidikia 2005, 257, followed by a note of I. Spyridakis, who is of the view that when the free union has a certain duration, the partners present themselves as a couple in the social-economic life, children were born out of their relationship, etc., the partner in free union should be dealt with as a spouse when applying art. 932 sent. 3 GCC. Epitheorissi Sygkoinoniakou Dikaiou (Epith SygkD, Review of Law of Transport) 1991, 553. Published at NOMOS. Not published. L. 489/1976 (FEK A’ 331), as it has been subsequently amended, has been codified with the Presidential Decree 237/1986 (FEK A’ 110).
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b) the provision of art. 19 § 2 of L. 489/1976 contravenes art. 20 § 1 of the Greek Constitution, because the two-year prescription period it establishes excessively restricts the right to judicial protection and such restriction is neither necessary nor appropriate for the administration of justice according to the constitutional orders, the prevailing social understanding and the particular nature of the protected right. The case was brought before the Supreme Court. AP 1698/2006: The plaintiff, employee at the Organization of Telecommunications of Greece (OTE), filed on 17 December 2001 a lawsuit, alleging that in 1993, 1994 and 1995 he was illegally not promoted to the next rank of vicedirector, and asked for pecuniary and non-pecuniary damages. The defendant invoked the plea of prescription provided by art. 937 GCC, arguing that the plaintiff had been aware of the damage and the identity of the person bound to reparations since 1995, when the Board of Directors of OTE had held a session to decide on the promotions and that until the lawsuit on 18 February 2002 five years had already elapsed. The Court of Appeal rejected the plea of prescription as vague on the ground that the defendant had not made reference to the way the plaintiff had acquired knowledge of the elements of its omission.
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b) Judgment of the Court
AP 603/2006: According to the Supreme Court, it derives from the combination of art. 1, 6 §§ 1, 2 and 5, 10, 17 and 19 of L. 489/1976 that, in cases where the Auxiliary Fund is held liable for damages towards the victim of a car accident, the claim of the latter is prescribed two years after the day of the accident, while as regards the interruption and suspension of prescription, the general regulations of art. 255 ff. and 260 ff. GCC apply. The said two-year prescription period, which also applies to the claim for non-pecuniary damages, starts to run the day after the accident, according to art. 241 GCC, regardless of the time the injured party acquires knowledge of the injury and of the identity of the person bound to make reparations. The provision of art. 937 GCC, which generally regulates the prescription period of claims to damages stemming from a tort, is not applicable in this case, because the claim of the injured party against the Auxiliary Fund is not a claim deriving from an unlawful act, but from the law, i.e. from the above-mentioned provisions of L. 489/1976. The Court noted however that art. 251 GCC applies, according to which, for the commencement of the prescription period, it is required that the claim can be judicially pursued. This occurs when there is no legal reason excluding or hindering its judicial pursuit. On the contrary, the existence of real impediments, such being the victim’s ignorance as regards the creation of his claim, does not hinder the commencement of the prescription period, but it may, if the relevant prerequisites are fulfilled, constitute a ground for its suspension. The Court concluded that prescription is an institution of public order, as it serves to ensure safety in transactions and certainty in law, while the two-year prescription period provided by art. 19 § 2 of L. 489/1986 also serves the need for a rapid settlement of the relevant cases. Accordingly, it does not restrict the constitutionally established right of judicial protection (art. 20 § 1 of the Greek
61
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Constitution), given also that the plea of prescription can be counterpleaded by invoking the abuse of right or the suspension of the prescription period.
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AP 1698/2006: The Supreme Court held that a direct violation of art. 281 GCC arises if an employee is, as regards his performance and general qualifications, obviously superior to his colleagues who were promoted instead of him. The said violation constitutes an unlawful act according to art. 914 GCC, from which claims for damages and moral harm arise for the employee who was not promoted. These claims are subject to a five-year prescription period, which commences from the moment the injured party gains knowledge of the damage and of the person of the tortfeasor (art. 937 sent. a GCC), i.e. from the moment the employee acquired knowledge of the decision not to promote him, without it being required for the commencement of the prescription period that he also has knowledge of the particular qualifications of his promoted colleagues, which would allow him to ascertain that the omission to promote him was abusive. Thus the Supreme Court held that the Court of Appeal erroneously required more elements for the application of art. 937 GCC than the ones actually required by the law. c) Commentary
63
The above decisions are interesting because they deal with the issue of when the prescription of a claim for damages, pecuniary and non-pecuniary, starts. In particular in the first case it has been held that when the claim for damages does not derive from an unlawful act but from the law, which provides for a different prescription period and a different starting point for the calculation of this period (e.g. the day after the accident), these particular periods and starting points apply. The provision of art. 937 GCC, which requires that the prescription period does not start before the injured party has acquired knowledge of the injury and of the identity of the person bound to make reparations, regulates the prescription period of claims for damages stemming from a tort and is not applicable when the obligation for reparations stems from the law, as occurs in the case of the Auxiliary Fund.
64
In the second case the Supreme Court precisely states the starting point of the five-year prescription period to which the claim for damages and moral harm of the illegally non-promoted employee is submitted. According to the Court, it derives from art. 937 GCC that the said prescription commences from the moment the said employee acquired knowledge of the decision of his employer not to promote him, without it being required for the commencement of the prescription period that he also has knowledge of the particular qualifications of his promoted colleagues, which would allow him to ascertain that the omission to promote him was abusive.
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11. AP 1006/2006:65 Issue of a Post-dated Cheque Without Provision a) Brief Summary of the Facts
The defendant, being the legal representative of corporation A, issued three cheques to the order of the plaintiff, who endorsed them as a pledge to bank B. The latter presented the cheques to the paying bank C in due time, but no payment was made because there were no available funds in the corporation’s account. As a result the plaintiff – being the previous legal bearer and endorser of the cheques – paid the amount of the cheques to B after a relevant recourse. The plaintiff filed an action against the defendant, who was aware of the lack of the available funds with C, asking to be compensated for the material damage she suffered by the illegal act of the defendant, i.e. the issue of the cheques without provision.
65
b) Judgment of the Court
The Court of Cassation held that, as derived by the provisions of art. 79 of L. 5960/1933, 914 ff., 297 and 298 GCC, whoever issues a cheque, knowing that he has no available funds with the paying bank either at the moment of issue or at the moment of payment, provokes an illegal (i.e. against the above-mentioned provision of art. 79 of L. 5960/1933) damage to the bearer due to the non-payment of the cheque. Therefore, he is liable to compensate the bearer, as the provision of art. 79 aims at protecting not only the public interest but also the interest of the bearer of the cheque, namely his trust in the cheque as an instrument of payment. The claim for damages from art. 914 GCC (which equals the value of the cheque) concurs with the claim from the cheque stemming from art. 40 of L. 5960/1933, and the bearer can choose the claim he prefers. Elements of the relevant lawsuit are: a) the existence of damage, sustained by the bearer of the cheque, b) the culpable provocation of this damage by the issue of a cheque without provision either at the moment of issue or at the moment of payment, and c) a causal relationship between the damage and the above illegal behaviour of the issuer. The person who is entitled to the action for damages as directly prejudiced is the legal bearer of the cheque at the moment of its presentation for payment and of the certification of the non-existence of funds for the relative payment. Reflective consequences to the property of a third party, caused by the issue of a cheque without provision, are not restituted, because the third party is indirectly prejudiced. This is deduced by the wording of art. 914 GCC and the restrictively introduced exceptions of art. 928 and 929 GCC. Accordingly, a previous legal bearer and endorser of the cheque, who paid the amount of the cheque to the legal bearer after a relevant recourse, does not have a claim to damages from art. 914 GCC, as the damage he sustained from the payment of the cheque is not causally linked to the issue of the cheque which was not honoured when presented for payment; his damage is causally linked to his liability as a legal bearer and endorser of the cheque to pay the cheque after a relevant recourse. This liability is especially provided by law. Consequently the previous bearer of the 65
ChrID 2006, 822.
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cheque is not entitled to the action for damages, unless the beneficiary’s claim was assigned to him. The same applies even if the previous legal bearer had endorsed the cheque and handed it over to the bearer as a pledge. This is due to the fact that the person who has the right of pledge and presents the cheque for payment does not act as a representative of the pledger, but exercises his own right stemming from the title since, according to art. 1255 GCC, he is entitled to collect by himself the cheque even if the secured debt has not yet fallen due (AP 18/2004 in full bench). c) Commentary
67
As mentioned herein above,66 after the latest amendment of art. 79 § 5 of L. 5960/1933 by art. 15 § 3 of L. 3472/2006, the previous legal bearer and endorser of the cheque, who paid the amount of the cheque to the legal bearer after a relevant recourse, is entitled to damages according to the provisions of the GCC on torts (art. 914 ff.).
C. LITERATURE 1. G. Albouras, Transformation of the Consequences of Invalidity to an Economic Magnitude According to the Provision of Art. 931 CC, EllDni 47, 712 ff.
68
The author takes up art. 931 GCC which aims, according to the author, at offering the victim a lump sum beyond that provided by art. 929 GCC. Accordingly, damage compensated for by art. 931 GCC cannot merely be the consequence of the inability to work and gain income, as the said damage is remunerated according to art. 929 GCC. In order for art. 931 GCC to apply, it is further required that damage is the consequence of the invalidity or disfiguration in particular. The writer notes that scientific criteria, namely the nature and severity of the invalidity, the character of the work the victim used to exercise, the high level of specialisation required in the business market, the payment of a healthy employee, etc., are required in order to evaluate the invalidity and its degree and that such criteria can be found in the legislation on insurance. If the degree of invalidity does not allow the victim to exercise any kind of work, art. 931 GCC cannot apply; in such a case the victim is entitled to full compensation provided by art. 929 GCC. 2. A. Danilatou, Damages, in the Series “Special Subjects of Law” Directed by Tsoumas B., Vol. 1 (Athens 2006)
69
This is the first volume of a series that aims at presenting the issue of damages in various fields in an alphabetical order. In this volume the presentation of torts is included.
66
See supra no. 4 ff.
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3. K. Fountedaki, Issues of Civil Medical Liability in Case of a Person’s Birth with a Serious Disease or Invalidity (Wrongful Life), in: M. Stathopoulos/K. Beis/Ph. Doris/I. Karakostas (eds.), Essays in Honour of Ap. Georgiadis, Vol. I (2006) 913 ff. The writer deals with the controversial matter of wrongful life. She outlines the general preconditions required for the establishment of the doctor’s civil liability, refers to the notion of medical fault and looks into the causal link between the illegal and culpable act of the doctor and the birth of an unhealthy or disabled child. The most crucial problems, however, that arise in regard to wrongful life are connected to the notion of damage. The question raised is whether the birth and existence of a child suffering from a disease can be regarded as damage and whether the child is entitled to compensation. The writer notes that awarding a claim for damages to the child would mean not only that the life of a person with a severe disease constitutes damage, but also that his non-existence would be preferable to him; such a conclusion, however, would contravene the constitutional protection of human dignity (art. 2 of the Greek Constitution) and the constitutionally imposed obligation of the State to protect the disabled (art. 21 § 2 of the Greek Constitution). Moreover the claim for damages comes up against dogmatic impediments, because the difference theory, the aim of which is to restore the victim to the property status he would have enjoyed had the tort not taken place, cannot apply in cases of wrongful birth: had the medical fault not taken place, the child would not have avoided a reduction to his property, but he would have never existed and would thus have no property at all.
70
As regards the claim for non-pecuniary damages, the writer notes that the existence of a person cannot be regarded as an offence towards that same person. Moreover, the person suffering cannot demand compensation for moral harm, because that would constitute a claim for the relief of the moral suffering caused by his own existence. Accordingly, the writer is against awarding a claim for damages for the unhealthy child, accepting however such a claim on the part of the parents, and concludes that the protection of people suffering from a severe disease or handicap is more a matter of social solidarity rather than an “acrobatic” and anti-systematic establishment of the doctor’s civil liability.
71
4. G. Gasparinatos, Civil Liability of the Administration of Corporations, Theory – Jurisprudence (Athens 2006) This thesis focuses on the civil liability of the administration of corporations towards third persons. The first part of the study is dedicated to the tortious liability of directors, which is based on art. 71 sent. b’ GCC in combination with art. 914 ff. GCC. The author points out that, in the last few years, the jurisprudence has tended to hold directors responsible also for the acts or omissions of third persons (employees or others), considering them as guarantors for the prevention and avoidance of every tort in the ambit of liability of the corporation. It is advised that this tendency of the jurisprudence has to be reconsid-
72
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ered, as it threatens to highly increase the risk of personal liability of directors to non-acceptable levels. 5. A. Kontogianni, Contributory Negligence in Civil Law (Athens 2006)
73
In this extensive and very interesting thesis (441 pages), art. 300 GCC on concurrent fault, which also applies to torts, is thoroughly analysed. The author, after making a historical and comparative survey on contributory negligence, focuses on the regulation and the field of its application in civil law. She presents the preconditions stipulated by art. 300 GCC by looking into the contribution of the party suffering the damage both before and after the damage is caused, as well as his liability for the acts of third parties. She also analyses the legal consequences of the victim’s contributory negligence and concludes that in the rule of art. 300 GCC a general principle is expressed which surpasses the law of damages and can apply by analogy to other similar cases where the creditor has shown a concurrent fault and has contributed to his own damage. Procedural issues regarding the subject matter are also tackled. 6. V. Kostavara/I. Romanos, Civil Liability of the Public Domain for the Collapse of a Building Due to an Earthquake as a Result of the Illegal Acts of the Competent Urban Planning Office, ChrID 2006, 91 ff.
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On the occasion of the decision 641/2004 of the Three-member Administrative Court of First Instance of Patras, which dealt with the catastrophic earthquake of 1995 in the city of Aigio and more specifically with the collapse of a block of flats which resulted in the death of a number of people, the writers of the article mention the extreme importance of the decision not only because it constitutes a moral vindication for the relatives of the victims, but also because it is recorded as the first court decision to ever acknowledge civil liability for the collapse of a building due to an earthquake to the competent self-administration (Prefecture) for the acts and omissions of the civil servants who staff its urban planning office. The above mentioned decision 641/2004 was followed by a string of decisions, namely the decisions of the Three-member Administrative Court of First Instance of Athens No. 2375, 2378, 2580 and 2583/2005 issued on the Ricomex case,67 which, on the same grounds, were in favour of the persons who sustained damage because of the collapse of buildings due to an earthquake; in these cases the defectiveness of the buildings was attributed to the illegal exercise of duties by the urban planning organs.
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From the name of the factory that collapsed in the suburbs of Athens during the September 1999 earthquake killing 39 people. See also on the Ricomex case the article of K. Roussos, infra no. 80.
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7. A. Kotzambasi, Domestic Violence as a Social Phenomenon and the Legal Protection Provided by Civil Law (Observations on the Bill on Domestic Violence68), Arm 60, 1525 ff. The author looks into domestic violence as a social phenomenon and presents its evaluation by the jurisprudence, as well as its legal protection provided by law. She refers to the claims which protect the marital relationship, the fragmentary regulation of separation in legislature and both the voluntary and judicial suspension of marital relationships. The author observes that the bill on domestic violence does not add new civil forms of protection to the already existing ones. However it is of great value at the symbolic level, as it expresses a new concept against the tolerance which has until now been shown towards domestic violence. She adds as a concluding remark her hope that, with the change of attitude, judges will soon adjudicate significant amounts of damages for moral harm in cases of domestic violence, which have been given no importance until now.
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8. St. Kousoulis, Concurrence of Contractual and Delictual Liability, in: M. Stathopoulos/K. Beis/Ph. Doris/I. Karakostas (eds.), Essays in Honour of Ap. Georgiadis, Vol. I (2006) 441 ff. Taking as a starting point the consistent jurisprudence of the Greek Supreme Court, according to which, when the act or omission which constitutes a contractual non-performance is simultaneously and in itself unlawful, the two liabilities, delictual and contractual, concur, the author contemplates these two liabilities. He notes that the current trends in theory do not share the aforementioned view of the jurisprudence, but the view expressed for the first time by the member of the Academy, Emeritus Professor A. Georgiadis, according to which, in such a case, only one claim is born, but this claim is founded on two different legal bases. After an extensive argumentation, the author concludes that this last view best complies with the Greek system of liability and leads to the appropriate solutions as regards civil procedure.
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9. A. Kritikos, Article 931 GCC. An Unnecessary Provision? Thoughts and Issues Raised, in: M. Stathopoulos/K. Beis/Ph. Doris/I. Karakostas (eds.), Essays in Honour of Ap. Georgiadis, Vol. I (2006) 501 ff. The author looks into art. 931 GCC. He presents the different opinions that have been put forward to date concerning the legal nature of the claim for additional compensation due to disfiguration; he delves into the question of whether art. 931 GCC introduces an independent claim and refers to the consistent opinion of the jurisprudence that the establishment of the claim requires particular incidents other than those required for the establishment of the claims based on art. 929 and 932 GCC. The writer concludes that art. 931 GCC applies when the invalidity or disfiguration could merely possibly unfavourably affect the economic-professional future of the victim. It applies even when no 68
Passed already as L. 3500/2006. See supra no. 9 f.
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claims based on art. 929 sent. a GCC are raised. Accordingly, the lawsuit does not need to correspond with the exaggerated demands of the jurisprudence as to its contents. Nonetheless, it is required that the way the invalidity affects the victim’s future is specified and determined in the lawsuit. The lawsuit which describes the invalidity and merely mentions that it will affect the victim’s future with no further specification is utterly vague. Thus, according to the writer, it is required that the lawsuit mentions that, in view of the victim’s inclinations and capacities, it is highly possible that the victim will alter the profession he previously exercised or that he will not be able to take on the profession he had hoped to or that he will be forced to choose a less profitable profession. The above mentioned criteria will allow the court to define the reasonable amount of compensation. 10. I. Markou, First Thoughts on an Unnecessary and Ill-Fitted Intervention of the Legislator. Matters from the New Provisions of Art. 79 § 5 L. 5960/1933, EllDni 47, 1283 ff.
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The writer criticizes the amendment made to L. 5960/1933 on cheques by art. 15 § 3 of L. 3472/2006.69 The notion that the previous legal bearer and endorser of the cheque, who paid the amount of the cheque to the legal bearer after a relevant recourse, is entitled to claim damages according to art. 914 GCC cannot, according to the writer, be accepted. It could lead to the oddity that the previous legal bearer would automatically, i.e. without the will of their beneficiaries, have multiple claims to damages, with possibly different content or subject. The new provision is also ambiguous as to who can be regarded as prejudiced and as to the exact content of the claim to damages, thus resulting in insecurity in the law. Last but not least the writer points out that it is likely that the issuer of the cheque needs to be protected against an “avalanche” of claims for damages filed against him. 11. G. Mitsopoulos, Proportionality and the Control of the Court of Cassation for Excessive Adjudication of Damages for Moral Harm, ChrID 2006, 769 ff.
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With the occasion of the decision 132/2006 of the Supreme Court,70 the author notes first that the term “reasonable” amount of damages provided by art. 932 GCC is a legal term which allows the Supreme Court to control the lower courts’ judgments as to the adjudicated amounts of money. Furthermore, he notes that the application of the principle of proportionality by the Supreme Court in its decision no. 132/2006 was not correct for the following reasons: a. Proportionality is a principle which must be taken into consideration when interpreting and applying a rule of law, therefore it presupposes that the court has the power to examine the lower court’s decision as to the violation of a rule of law, which may encompass the violation of the principle of proportionality. No new ground for cassation is created because of the principle 69 70
See supra no. 4 ff. See supra no. 37 ff.
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of proportionality. The existence of a ground for cassation for violation of the law is presupposed; when controlling this ground of cassation it will be checked whether the aim of the law is violated and in this frame it will be judged whether the principle of proportionality has been also violated. b. Proportionality as a ground for cassation creates the danger of expanding the control of the Supreme Court to vast areas of law, where the structure of the regulations excludes the application of the said principle. c. The principle of proportionality must not exceed the permissible limits of interpretation, as they have been defined by the jurisprudence of the Court of Human Rights, combined with the constitutional provisions regarding the matter. 12. K. Roussos, The Prescription of the Claim Stemming from a Tort, ChrID 2006, 81 ff. With the occasion of the decision no. 12/2005 of Areios Pagos (full bench), which deals with damages to the victims of the Ricomex factory which collapsed during the September 1999 earthquake,71 the author touches on two issues concerning the law of torts: a) culpability and more specifically the meaning and preconditions of dolus eventualis and b) the prescription of the tortious claim. The author analyses the issue of prescription, also aiming at giving an overview of the developments in jurisprudence as concerns the interpretation of art. 937 GCC and contributing to the solution of matters connected with the twenty-year prescription of claims stemming from a tort.
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13. K. Roussos, The Employer’s Civil Liability for Omitting to Promote a Private Employee, ChrID 2006, 865 ff. The writer notes that the illegal omission to promote an employee may establish not only contractual, but also tortious liability. Illegality, as a precondition of art. 914 GCC, is based on the violation of art. 281 GCC, the criteria of which are used to judicially control employers’ decisions regarding promotions. There is, however, a trend in jurisprudence to acknowledge tortious liability without examining whether the employer’s behaviour is abusive in cases where the staff regulation has legislative force and to deny tortious liability in cases where the regulation has contractual force. The writer criticizes this differentiation as inconsistent with the notion of tortious illegality.
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Furthermore, the writer focuses on matters concerning prescription. Given that in cases of omission to promote both contractual and tortious liability are established, multiple provisions on prescription can apply: art. 249 GCC, providing for a twenty-year prescription period as to the contractual claim to promotion, art. 937 GCC providing for a five-year prescription period as to the tortious claim to promotion and salaries, art. 250 no. 17 GCC providing for a five-year prescription period as to the claim for salaries. The prevailing view in jurisprudence applies art. 937 GCC and accepts that, in case of successive
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For a brief summary in English of this interesting case related to the civil liability of the civil engineer who had defectively constructed the factory see Dacoronia (fn. 28) 311 ff., no. 19 ff.
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omissions to promote, which take place as the natural consequence of the initial omission, each one of these omissions does not constitute a new tort; thus the conclusion reached is that the five-year prescription period commences from the initial omission. The author is against the afore-mentioned prevailing judicial view and stresses that the contractual liability cannot unjustifiably be set aside in order for the provisions on torts to apply. He maintains that, regarding the claim to promotion, the twenty-year prescription period provided by art. 249 GCC should also apply. 14. V. Vathrakokoilis, Interpretation – Jurisprudence of the Civil Code, Vol. 3, Law of Obligations, Special Part: Art. 741–946 GCC (Athens 2006)
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In this volume, among other articles of the GCC, also those related to torts are interpreted, and the relevant recent jurisprudence is presented. 15. E. Zervogianni, The Restoration of the Status Quo Ante as a Form of Damage Compensation (Athens 2006)
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The author in her thesis, which covers 388 pages, presents in a most detailed way the restoration of the status quo ante as a form of damage compensation. The focal point of the analysis is art. 297 sent. b GCC, which provides for the restoration of the status quo ante as a form of damage compensation and is one of the most fundamental rules of the general law of compensation and applies both to contractual and delictual liability. The general frame of the application of art. 297 GCC is followed by a most interesting typology, which includes – amongst others – the damage caused to the body or health and the damage to environmental goods.
XI. Hungary Attila Menyhárd
A. LEGISLATION 1. Act IV. of 2006 on Business Associations The new Companies Act in Hungary, although in substance similar to the previous Act, has rewritten the rules covering the liability of managers with two significant changes. One is that the regulation attempts to provide normative frames for the resolution of acceptance and approval of accounts of the general manager (§ 30 subpara. 5 of the Companies Act 2006). The other is that, although as a general rule general managers shall always act in the interests of the company, this requirement changes if the insolvency of the company is imminent. This being the case, general managers shall act in a manner giving priority to the interests of creditors of the company rather than to those of the company (§ 30 subpara. 3 of the Companies Act 2006). According to special legislation,1 general managers failing to comply with this requirement shall be liable vis-à-vis the creditors of the company. This special rule of liability attempts to implement a “wrongful trading” doctrine followed in other jurisdictions.
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2. Act IV. of 2006 on the Amendment of the Act XLIX. of 1991 on Bankruptcy, Insolvency and Liquidation This recent Amendment of the Bankruptcy Act provides for special rules on liability of managers of a company on the verge of bankruptcy. The creditors and the liquidator of the company are entitled to ask for a judicial declaration that those who acted as general manager(s) of the company in the previous three years failed to act with the interests of the creditors as their highest priority in a situation of imminent insolvency (including performance of obligations established by environmental regulation) if this non-compliance with the priority of creditors’ interests led to a diminution of the company’s assets. The insolvency shall be deemed as being imminent if the general managers foresaw or should reasonably have foreseen that the company would not be able to perform its obligations as they became due. General managers shall be exempted 1
See under no. 2, the Amendment of the Bankruptcy Act.
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from liability by proving that they took all the steps generally required under the given circumstances in order to reduce the loss of creditors (§ 14 of the Amendment and new § 33/A subpara. 1 of the Bankruptcy Act). 3. Act LXXXVIII. of 2006 on the National System of Reduction of Damage in the Agricultural Sector
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The aim of the Act is to create special financial resources for compensating damage in the agriculture sector on an insurance basis subsidized from the state budget as well. The compensation scheme functions on a voluntary contractual basis and shall be financed by farmers joining the system and the state budget that shall provide support in an equal amount to that provided by the farmers joining the system. Only contracting farmers are entitled to seek compensation and the reduction in the value of the harvest is the maximum of the loss to be compensated from the funds. 4. Act CIV. of 2006 on the Amendment of Act CXXV. of 2003 on AntiDiscrimination and the Requirement of Equal Treatment
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The Anti-Discrimination Act came into effect on 27 January 2004 providing a wide scope of protection against discrimination and is very open for application in private law relationships. According to § 5 of the Anti-Discrimination Act, everyone who makes an offer or an invitation for an offer to indefinite persons or sells goods or provides services in premises open to customers shall be obliged to comply with the requirement of equal treatment. This Amendment of the Anti-Discrimination Act establishes a new Advisory Committee and has some provisions with private law aspects as well. § 1 of the Amendment establishes that – if it is not otherwise provided by the Act itself – a conduct, disposition, condition, omission, order or practice shall be deemed as being in compliance with the requirement of equal treatment if it limited the aggrieved party’s basic rights in order to guarantee another basic right, the limitation was unavoidable, suitable for pursuing this aim and was proportionate or it had, according to fair and objective considerations, a reasonable ground directly connected to the given legal relationship. § 2 of the Amendment reformulates the definition of segregation as it provides that the disposition segregating individuals or groups of individuals from other individuals or groups of individuals in a comparable situation on the ground of qualities specified in § 8 of the Act shall be deemed – if not explicitly allowed by law – unlawful. 5. Act CVII. of 2006 on the Amendment of Act XXVII. of 1998 on Genetic Technology Activity
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The most comprehensive genetic technology related legislation in Hungary is Act XXVII. of 1998 on Genetic Technology Activity. This Act provides for a special liability regime for genetic technology activity in general2 as well as 2
I.e. damage caused by genetic technology activities such as establishing an institution (e.g. a laboratory) that performs genetic technology activity, modification of genes, utilization of genemanipulated micro-organisms in closed systems, emission, export, import, putting the output of genetic technology activity into circulation and elimination, etc.
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liability for damage caused as a result of incomplete segregation of GM and traditional crop production. The scope of regulation provided by the Genetic Technology Act as amended, including the provisions concerning liability, covers the production and distribution of GM-products as genetic technology activity in general as well as damage caused in the course of growing genetically modified crops neighbouring traditional crop production. Risks of economic damage resulting from actual or feared GMO presence in non-GM crops are covered with this liability rule only in so far as they are the result of incomplete segregation from neighbouring cultivated traditional plants. As a general rule, § 27 of the Genetic Technology Act provides that – as genetic technology activity may imply considerable hazard – rules on liability for dangerous activities (§ 345 ff. of the Hungarian Civil Code) shall be applied to liability for damage caused by genetic technology activity. The Act did not originally provide regulation of the improper segregation of GM and traditional crops. One of the aims of this amendment was to fill this gap. The new § 21/D subpara. 5 and 6 of the Genetic Technology Act as amended provide that liability for damage caused as a result of incomplete segregation of GM and traditional crop production shall be covered by § 345 and § 346 of the Hungarian Civil Code (the strict liability regime for dangerous activities). If, however, the victim, as the owner or user of the neighbouring land has consented to the growing of genetic plants in a written form according to § 21/C of the Genetic Technology Act, the general fault based liability regime is to be applied (according to §§ 339–342 and § 344 of the Hungarian Civil Code). The significance of the amended regulation covering liability for improper segregation is reduced by the fact that the environment ministers of the European Union upheld Hungary’s right to ban GMOs in their decision of 20 February 2007.
B. CASES 1. BH 2006 no. 23 (Supreme Court, Legf. Bír. Gfv. IX. 30.105/2005): Liability for Acceptance of a Stolen Credit Card a) Brief Summary of the Facts
An unknown person stole the plaintiff’s credit card and bought goods paying with the stolen credit card in the defendant’s shop. The plaintiff claimed compensation of the sum paid by the thief as a result of the use of his credit card. The contract concluded by the defendant and the bank running the POS terminal for card payments regulated in detail the proper method of accepting cards and paying by credit card. The plaintiff argued that the defendant failed to comply with the requirements provided in this contract as security measures (primarily comparing the buyer’s signature with the owner’s signature on the credit card) and this made possible the abuse of the credit card.
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b) Judgment of the Court
The courts of first and second instance rejected the claim on the ground that the defendant did not act in a faulty manner when he accepted the stolen credit
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card. The Supreme Court quashed the decision and established that the courts shall take into account the required conduct established in the contract between the defendant and the bank which issued the credit card. c) Commentary
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My general view is that contracts shall create rights and obligations between the parties but not vis-à-vis third persons (with the exclusion of contracts for the benefit of third parties). This case provides an example of a contract (concluded between the defendant and the credit card issuer bank) which has an influence on the obligations of the party vis-à-vis a third person (the plaintiff as the holder of the credit card) as contractual obligations of the party become part of the test of the required standard of conduct. This reflexive effect of contractual obligations may provide important insights into the relativity and uncertainty of the division of contract and tort in the law of obligations. 2. BH 2006 no. 49 (Supreme Court, Legf. Bír. Pfv. VIII. 20.124/2005): Car Driver’s Liability for Bad Decision in a Dangerous Situation a) Brief Summary of the Facts
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The defendant was driving his truck when he realised that another car – overtaking another car and thus violating the road traffic rules – was heading towards him in the same traffic lane. The defendant decided to avoid the collision by steering the truck to the left. Changing lane, the truck collided with the plaintiff’s car, overtaken by the other car heading towards the truck. The plaintiff claimed compensation of the value of his car being completely written-off as the result of the collision. The defendant pleaded that he was not at fault for steering the truck onto the opposite lane as he was trying to avoid a collision in a dangerous situation which had been created by another car driver overtaking and thus breaking the traffic rules. He argued that he had only two bad choices: a) steering the truck right which would necessarily have resulted in his own serious injury as he would have crashed into a roadside tree or into a ditch along the road or b) steering the truck to the left as he did, with the possible consequences of a collision with the other car as happened. He cannot be blamed for choosing a solution resulting in damage in such a situation (not created by him) as he had only two opportunities being equally bad and the damage was unavoidable. b) Judgment of the Court
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The Court decided that the defendant shall be liable and is obliged to compensate the damage suffered by the plaintiff. The Court established that the defendant shall be liable according to the special rules on liability for especially dangerous activities and, as he could have avoided the damage by choosing to swerve to the right, he shall be held liable. Even if the danger was not created by him, it was – according to the Court – his own decision not to minimise the risk in this situation but rather extended the risk to others (the plaintiff) as well.
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c) Commentary
According to § 345 subpara. (1) Hungarian Civil Code, a person who carries on an activity involving considerable hazards shall be liable for any damage caused thereby. Being able to prove that the damage occurred due to an unavoidable cause that falls beyond the realm of activities involving considerable hazards, the operator of the activity shall be relieved from liability. If – as in this case – there are two dangerous activities (here the two cars) colliding, the one at fault according to the general rules of liability (§ 339 Hungarian Civil Code) shall be liable. The bases of the Court’s decision were, on the one hand, that the plaintiff’s damage (the accident) was avoidable by the defendant and, on the other, that the defendant was at fault in choosing a solution which extended the risk of damage to the plaintiff.
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3. BH 2006 no. 148 (Supreme Court, Legf. Bír. Pfv. III. 20.443/2005): Liability of the Bank to Victims of Bank Robbery a) Brief Summary of the Facts
The son of the plaintiffs died as a result of being shot in a bank robbery in the defendant’s branch office. The plaintiffs claimed damages from the defendant bank for the death of their son. They argued that the bank failed to act as it was generally expected in the given situation as it prevented neither their son nor the other victims of the robbery from being victims of such a crime at the branch office. They also argued that as bank offices in general are exposed to such violent crimes, the operation of bank offices shall be deemed as an especially dangerous activity and for this reason the defendant should only be relieved from liability by proving that the harm was unavoidable and fell outside the scope of the defendant’s activity.
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b) Judgment of the Court
The Court rejected the claim. The Court, which in other cases seems to be increasingly willing to extend the application of the strict liability regime for especially dangerous activities as it considers appropriate in order to reach an optimal risk allocation, argued that the operation of bank offices shall not be qualified as an especially dangerous activity. On this ground the defendant’s liability shall be assessed according to the general rule of fault-based liability. The Court established that there are no requirements for banks to implement special protective measures (applying bullet-proof glass-walls, special entry systems, etc.) in order to avoid such cases.
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c) Commentary
The case was perhaps the most shocking crime ever committed in Hungary, where eight persons were shot dead. There might have been a psychological pressure on the courts to decide for the plaintiff, but the courts resisted successfully. The decision is in line with the court practice on liability for especially dangerous activities. There are decisions that present some extension of this form of liability but this case does not reflect this tendency. It is remarkable
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that the causal link between the bank’s alleged omission and the damage of the plaintiff was not questioned in this case. It seems from the published decision that the case did turn on considering fault but not on causation. One reason for this may be a strong interference in establishing fault on the one hand and causality of an omission on the other. In order to establish a causal link between an omission and damage, there must be an explicit or implied duty that the tortfeasor failed to comply with. The same failure may establish the tortfeasor’s fault as well: if someone fails to meet a duty provided by the law, he would hardly be able to prove that he acted as was generally expected under the given circumstances. 4. BH 2006 no. 155 (Supreme Court, Legf. Bír Pfv. VIII. 21.574/2004): Right of Public Prosecutor to Claim Compensation for Damage in Human Environment a) Brief Summary of the Facts
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The defendant organised hunting trips for guest hunters from foreign countries. Two guests shot some birds that were not protected species but the hunters broke the hunting protocol as they used audio equipment in the course of hunting which was not allowed. This method of hunting shall be deemed as illegal but no harm was caused as there were no limits on hunting these birds in the period in question. The public prosecutor submitted a claim for damages referring to the special rights provided in Act LIII of 1995 on the Nature Protection Act (§ 60 and § 81) to launch court proceedings when necessary in order to protect State interests if damage to the natural environment is caused. The plaintiff argued that as illegal tools had been used, the natural environment was damaged even if the actual shooting of the birds shall not be deemed as illegal. b) Judgment of the Court
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The Supreme Court rejected the claim establishing that, according to the proper interpretation of the provisions of the Nature Protection Act, this damage shall not be deemed as environmental damage but merely a damage to property. For this reason only the owner of the hunting rights, as victim of the defendant’s act, may have a claim against the defendant. c) Commentary
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The public prosecutor has special powers to intervene to enforce private law rights and obligations if so required by public interests. One of these cases is provided in § 60 and § 81 of the Nature Protection Act. Here the Court did not establish the right of the prosecutor to enforce a claim which was a procedural barrier to submitting such a claim. This turned on the definition of damage to the natural environment.
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5. BH 2006 no. 184 (Supreme Court, Legf. Bír. Pfv. III. 20.852/2005 sz.): Liability for Violation of Property Rights a) Brief Summary of the Facts
The defendant, one of the mobile phone service provider companies in Hungary, erected a transmission mast as part of the mobile transmission network on land hired over a long term period for this purpose. The plaintiff, the owner of the neighbouring land, claimed damages from the defendant as a compensation of losses he suffered because of the reduction of the value of his land and as non-pecuniary losses caused by the defendant’s conduct in erecting the transmission mast on the neighbouring land. The plaintiff also based his claim on an infringement of § 100 of the Civil Code providing that the owner shall be obliged, in the use of his property, to refrain from any conduct that would unnecessarily disturb others, in particular his neighbours, or which would jeopardize the exercise of their rights. The defendant pleaded that the mast had been built according to the statutory requirement and its existence does not establish an unnecessary nuisance.
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b) Judgment of the Court
The Court established that the defendant shall be liable according to the general rules of liability which provide that a person who causes damage to another person in violation of the law shall be liable for such damage. He shall be relieved from liability if he is able to prove that he acted in a manner that can generally be expected in the given situation (§ 339 Hungarian Civil Code). The defendant shall be relieved from liability only by proving that it could not erect the transmission mast without creating a source of intrusion reducing the value of the plaintiff’s land. The Court did not accept the regulatory permit defense of the defendant. The Court decided for the plaintiff.
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c) Commentary
This Supreme Court decision is important from several perspectives, one being the relationship between tort and property law. The Court linked protection of property to tort law as it established that, in order to be relieved from liability, the defendant should have proven that the intrusion was necessary and this would have established that the defendant acted according to the required standard of conduct. The other problem is that the question whether plaintiffs are awarded compensation for violation of their property rights depends on the opportunities the defendant has to erect the mast somewhere else without disturbance which makes the remedies for infringement of property rights somehow incidental. An approach on an unjust enrichment basis – which would certainly be a somewhat flexible interpretation of enrichment – may bring a more correct and just result. Compliance with statutory or individual permission makes the tortfeasor’s conduct lawful in public law but does not make it lawful in tort law. The permission itself does not lead to the tortfeasor being freed from civil law liability. The decision presents remarkable interference of property rights, tort law and unjust enrichment.
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6. BH 2006 no. 318 (Supreme Court, Legf. Bír. Pfv. IV. 20.419/2006): Remedy for Infringement of Personality Rights a) Brief Summary of the Facts
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The plaintiff was the former mayor of a village and the defendant the new mayor, elected after the plaintiff resigned. The defendant, in order to win as many votes as possible during the election campaign, criticised the plaintiff’s activity alleging that the plaintiff used the financial resources of the village for his own purposes. The plaintiff claimed the declaration of an infringement of his property rights and claimed indemnity compensation referring to § 84 subpara. (1) c, of the Hungarian Civil Code. b) Judgment of the Court
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The Court rejected the claim for indemnity compensation on the ground that awarding non-pecuniary damages is the correct method of compensation – the plaintiff does not have the choice to claim compensation in the form of restitution. c) Commentary
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Remedies for infringement of personality rights and immaterial damages belong to the most disputed problems in Hungarian tort law. One of the central questions in these discussions is whether indemnity compensation without requiring the preconditions of liability for damages could adequately protect the victim’s interests. In the practice of the lower courts there was an attempt to apply § 84 subpara. (1) c, of the Hungarian Civil Code3 as an objective sanction of infringement of personality rights to award pecuniary compensation on a no-fault basis. The Supreme Court rejected this interpretation and this view of the Court is presented in this decision. The Court declared that this remedy for infringement of personality rights cannot be used for awarding pecuniary compensation. The pecuniary remedy of infringement of personality rights is to award non-pecuniary damages. 7. BH 2006 no. 360 (Supreme Court, Legf. Bír. Pfv. III. 20.028/2006): Liability of Doctors for Failure to Reduce the Risk in Childbirth a) Brief Summary of the Facts
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The children of the plaintiff were born premature with serious brain damage. The plaintiff argued that the doctors of the defendant hospital did not act properly in the course of her pregnancy treatment and preparation of birth because they did not send her to a specialised institute and so failed to reduce the risk of giving birth to unhealthy children. Pre-natal examinations revealed that there was a risk that the babies would be born prematurely and that there was brain 3
According to which a person whose inherent rights have been violated shall have the following options under civil law: depending on the circumstances of the case demand that the perpetrator make restitution in a statement or by some other suitable means and, if necessary, that the perpetrator, at his own expense, make an appropriate public disclosure for restitution.
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damage, but the failure of the defendant’s doctors in sending the plaintiff to another – more equipped and specialised – hospital increased this risk. The plaintiff claimed damages in her own name for giving birth to brain damaged children and the children claimed damages as well. b) Judgment of the Court
The Court decided for the plaintiffs. The Court established that the defendant shall be liable vis-à-vis the plaintiffs both for pecuniary and non-pecuniary damages. Since the fault of the defendant’s doctors did not cause the damage in itself but only contributed to a higher risk, the Court established that the defendant shall be liable for 30% of the damage.
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c) Commentary
This decision has two peculiarities, one being that the Court accepted again that children may have a claim for pecuniary and non-pecuniary damages in their own name for wrongful life. The other is that the causal link between the damage and the doctors’ failure was not direct, since the doctors only reduced the chance of not having an ill – or so ill – baby. This increase in the risk of giving birth to handicapped children established the liability of the defendant. It has not been proven what could have happened if the doctors had sent the mother to another hospital (it is not clear from the decision itself). Perhaps in this case not the chance of having a healthy child but having a less brain damaged child could have been greater. The Court did not consider probabilities in the course of deciding the case. Even if the decision seems to be a “loss of a chance” case, it may be too early to arrive at the conclusion that, in Hungarian court practice, the loss of a chance may establish a causal link or damage in itself. The main leading thought of the Court might have been prevention or deterrence as they did not want to leave the doctors’ omission without sanctions. From the published decision it does not seem that the real problems of whether the loss of a chance may establish causation or damage have been considered in depth. Because of this it is hard to establish or predict the impacts and implications of the decision in the long run.
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8. BH 2006 no. 397 (Supreme Court, Legf. Bír. Pfv. IV. 21.130/2006): Collision of Freedom of Opinion and Protection of Reputation a) Brief Summary of the Facts
The defendant, as a Member of Parliament, gave every third year pupil in a secondary school the gift of a book by Imre Kertész, the Nobel Prize winning Hungarian writer. The book deals with the story which focuses on the Nazi holocaust during World War II. A few days after the pupils had been presented with the book some damaged copies of the donated book were found in the streets. The plaintiff reported the matter to the police and declared in public that, by buying and donating the books, the defendant had committed the crime of fraudulent breach of trust. The defendant announced in a meeting of the local representatives of the municipality that he initiated the donation and he declared that the plaintiff should be imprisoned for at least twelve years or sent to
27
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a closed hospital. He further stated that the fact that the Hungarian government had not yet succeeded in this was a disgrace. The plaintiff claimed that the defendant – by making these statements – infringed his right to reputation. b) Judgment of the Court
28
The Court rejected the claim on the ground that, as the plaintiff himself also violated the defendant’s right of reputation alleging that he had committed a crime and as freedom of speech is a protected personality right as well, there is no ground for giving priority to protection of reputation. c) Commentary
29
It is a well-established court practice that claims based on the violation of personality rights and mutual wrongs – if there are any – cannot be neglected. If the plaintiff provoked the defendant’s wrongful conduct – as occurred in this case – this may be a ground for preventing him from seeking a remedy for the violation of his rights.
C. LITERATURE 1. József Zavodnyik, A biztosítókról és a biztosítási tevékenységről szóló 2003. évi LX. törvény magyarázata. 1–2. köt. (Commentary to the Act LX. of 2002 on Insurance Companies and Insurance Activity) (Magyar Hivatalos Közlönykiadó, Budapest 2006)
30
The book is a comprehensive commentary to the Insurance Act that came into force on 1 May 2004. The main aim of this Act is to implement the EU legislation concerning insurance business in Hungarian law. The legislation – and so this Commentary – does not focus on private law aspects of insurance regulation (although it does not leave them out of consideration either) but on the rules concerning the operation of insurance companies and their activities. The Commentary attempts to reveal the elements of inner coherence of this new legislation, to enlighten its EU law background and to present the standards, published policies, requirements, recommendations and other materials provided by public bodies concerning the application of this legislation. The author is well-known as an expert in insurance law in Hungary. 2. Tamás Cseh, A Magyar “Wrongful Trading” és annak elméleti alapjai (“Wrongful Trading” in Hungarian Law and Its Theoretical Background) THEMIS (ELTE Law Faculty, Budapest 2006 at www. ajk.elte.hu) 4–16
31
The author provides a critical analysis of the implementation of wrongful trading doctrine in the new Hungarian company legislation.
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3. Melinda Imre, Az internet-szolgáltatók felelősségének szabályozása a szerzői jogot sértő tartalmak tekintetében. Az amerikai, a közösségi és a magyar szabályozás bemutatása (The Liability of Internet Providers for Contents Violating Intellectual Property Rights. The Presentation of Hungarian, American and European Regulation) Iustum Aequum Salutare 1-2006/2, 213–227 The author provides a comparative presentation and analysis of liability of internet providers for contents that infringe intellectual property rights which is an often debated question and is one of the most important problems when regulating the internet.
32
4. Gábor Jobbágyi, Az orvos polgári jogi felelőssége (Civil Law Liability of Doctors) In Formatori iuris publici studia in honorem Geisae Kilényi septuagenarii – ünnepi kötet Kilényi Géza professzor hetvenedik születésnapjára, szerk. Hajas Barnabás és Schanda Balázs (közreadja a Pázmány Péter Katolikus Egyetem Jog- és Államtudományi Kara, Budapest 2006) 207–216 The article provides an analysis of legal and ethical aspects of liability of doctors which is a socially and ethically sensitive issue in private law. The author, a professor specialising in bioethics and the law of persons, presents a critical analysis of Hungarian court practice.
33
5. Tamás Lábady, A fogyatékossággal született gyermek saját jogú kártérítési igényéről (On the Child’s Claim for Compensation of Wrongful Life) (Családi Jog, 2006/3) 15–25 On the basis of ethical and legal arguments, the author, in this article, questions the practice of the Hungarian Supreme Court in accepting the claims of children for non-pecuniary damages for wrongful life. The author argues that this approach (and that accepting the possibility of treating a child as a harm) cannot be upheld neither from the point of view of generally accepted social values nor from the inner logic of law. The author is a former Constitutional judge, a law professor, a well-known expert in tort law and the head of the Pécs regional court.
34
6. Andrea Marosi, A könyvvizsgáló felelőssége (The Liability of Accountants) (Számvitel, Adó, Könyvvizsgálat 2006/11) 478–481 The author provides an analysis of liability of accountants of a company which is a very rarely addressed problem in Hungarian legal literature, even if there is an important pending case related to such liability in Budapest. This article provides a valuable contribution to the professional discussion in this field.
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7. Zoltán Nagy, Az állami felelősség kérdése vagyonelvonások kapcsán a bírói gyakorlat tükrében (Liability of the State for the Withdrawal of Assets: Reflections on the Court Practice) (Gazdaság és Jog 2006/10) 15–21
36
The article addresses a special aspect of state liability from a practical point of view, focusing on the Hungarian court practice and analysing the liability aspects of the cases where the state withdraws financial funds from state organizations and public bodies. 8. Attila Vermes, A jogi felelősség és a felelősségbiztosítás egymásra hatásának egyes kérdései (Some Aspects of Interaction Between Tort Law and Third Party Insurance) In Fiatal oktatók tanulmányai 2006 (4) (Rejtjel Kiadó, Budapest 2006) 161–180
37
The author addresses some risk allocation aspects of interaction between liability insurance regulation and tort law which is a relatively rarely discussed problem in Hungarian legal literature. The author is a young researcher and PhD student.
XII. Ireland Eoin Quill
A. LEGISLATION AND OFFICIAL REPORTS 1. Personal Injuries Assessment Board (PIAB) Annual Report 20051 This is the second annual report of the PIAB and the first to cover a full year of operations.2 The approximated figures in the report indicate that during 2005 20,000 applications for compensation were filed; of these 3,300 were settled between the parties after preliminary contact with PIAB; 2,900 cases were awaiting further documentation at the year’s end; 700 were certified to go to court as they were outside the PIAB’s remit; 4,200 involved either a dispute as to liability or were settled at a point later than those settlements mentioned earlier;3 3,800 were in the process of being assessed; 4,100 were being considered by respondents (who have 90 days to accede or refuse to subject the case to assessment); 1,000 assessments had been issued. 30% of assessments were rejected, mainly by claimants (24%). The report anticipates 4,500 awards being made in 2006 and 10,000 in 2007.4 It also envisages claims rising to between 24,000 and 26,000 per year. One clear point emerges from this morass of figures and that is that the much-vaunted comparison of 9 months for PIAB processing, compared to 36 months by the courts, is misleading. The 9-month time period, emphasised by the PIAB, applies to the actual assessment process, excluding any time delays in claimants filing paperwork, respondents deciding to submit to assessment and parties determining whether to accept awards.5 The actual time between accidents and the delivery of compensation is closer 1 2
3
4
5
Available at www.piab.ie (see the forms & publications section; last accessed 7 March 2007). The first report only covered a small number of cases as the PIAB was phased into operation, see E. Quill, Ireland, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2005 (2006) no. 4–6. Unfortunately the report does not provide any breakdown of this figure to indicate how many cases were disputed and how many were settled during the course of the PIAB process. Updated statistics on the PIAB website show that, in fact over 5,500 assessments were issued during 2006 – Briefing Note 1 November, 2006 (accessed on 2 January, 2007). This is in accordance with sec. 49(2) of the Act. Sec. 49(4) makes provision for an extension of time of up to 6 months if there are valid reasons for being unable to complete the process. The Annual Report makes little reference to its primary obligation under sec. 49(1) to make assessments “as expeditiously as may be”; surely not all cases need necessarily take 9 months solely for the assessment, though the tenor of the report suggests that the PIAB believes it always has 9 months to do so.
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to a year and a half (an average of 73 weeks is indicated in the report). The projections for applications and assessments indicate that a significant backlog is likely, at least in the short term. Thus, although there is some saving of time, it is not as dramatic a saving as has been publicised and may deteriorate if assessments do not keep pace with applications.
2
The cost savings in the delivery of compensation were quite significant. The total amount of compensation assessed and accepted was over € 11 million, at a cost of just over € 850,000, saving more than € 4 million in costs compared to litigation. The projected savings for 2006, as the number of awards increases, is € 20 million. There was a minor increase in costs during 2006, with the respondent’s fee being increased from € 850 to € 900.6 This will have only a marginal effect on the cost of claims overall. The most significant point to note is that, while this reduction in delivery costs has generated savings for insurance companies, there is no confirmed evidence of that being passed on to their customers.7
3
Further shortcomings in the Book of Quantum have been highlighted in cases during 2006. In Kenny v Cowley,8 the plaintiff was awarded € 120,000 general damages in respect of an eye injury. The Irish Supreme Court (IESC) noted that there was no available figure in the Book of Quantum to assist the court. The plaintiff suffered retinal detachment, which combined with a pre-existing weakness in his other eye, leaving him with double vision and dizziness. One particular consequence that was specifically noted was that he could no longer drive. In light of the severity of the injury, the IESC felt that the trial court’s award of € 90,000 was too low and so raised it to the figure already indicated and also added a further € 40,000 for impairment of future earning capacity. In O’Gorman v Jermyn & ors9, the plaintiff had his stomach removed unnecessarily due to a mix-up in laboratory results. This is a clear example of a catastrophic permanent disability, which one would expect to attract general damages at the highest level. Under the Book of Quantum there is no specific provision for such an injury and, as highlighted in previous reports, the Book of Quantum only provides for the maximum level of general damages in cases of paraplegia or quadriplegia;10 thus the maximum might not be awarded by 6
7
8 9 10
Personal Injuries Assessment Board (Fees) (Amendment) Regulations 2006; Statutory Instrument (SI) 264/2006, effective from 1 June 2006. V. Hogan, A Cost Benefit Analysis of The Personal Injuries Board (2006). This report was commissioned by PIAB in compliance with its obligations under sec. 54 of the Personal Injuries Assessment Board Act 2003 and is also available on the PIAB website (fn. 1). [2006] IESC 37; http://www.bailii.org/ie/cases/IESC/2006/S37.html. [2006] Irish High Court (IEHC) 398, considered further below, Case no. 5. E. Quill, Ireland, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2004 (2005) no. 2. In the present case, the parties agreed to a figure of € 450,000 in damages. This is rather low in the circumstances, given the devastating nature of the injury. The closest injury in the Book of Quantum is under the heading of “Bowels and Digestive System” and provides a maximum of € 113,000 general damages for a permanent colostomy. On the general disparity between the maximum under the Book of Quantum and the amounts available in court and on the circumstances in which the maximum is available, see also L O’K v L H [2006] IEHC 393, where de Valera J indicated that the appropriate maximum figure for catastrophic injuries was close to € 400,000.
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the PIAB for an injury such as this. The previously reported case on the question of legal representation, O’Brien v PIAB,11 was before the IESC on a procedural point. The litigant that had complained about the PIAB’s policy towards legal representation applied for a motion seeking directions on the status of the PIAB appeal; he argued, that as the original tort case between himself and his employer had proceeded to court, it was now outside the PIAB process and any issue between the parties in the judicial review proceedings was moot and so the appeal should not continue. The IESC found that the issue was not moot for two main reasons. First, the applicant might be unfortunate enough to suffer another injury at a later date, bringing him back into contact with the PIAB; while this was only a slight possibility, it was nonetheless real. Secondly and more importantly, the Irish High Court (IEHC) decision has important implications for the manner in which the PIAB conducts its business generally and so is an important issue for them and is one of great public importance. In light of this the appeal should proceed; the final outcome is eagerly awaited. 2. Safety, Health and Welfare at Work Regulations 2006 Several Statutory Instruments (SI) were introduced to give better effect to the Safety, Health and Welfare at Work Act, 2005 and to ensure compliance with certain EU Directives on occupational safety. The Safety, Health and Welfare at Work (Control of Vibration at Work) Regulations 2006 (SI 370/2006) give effect to Council Directive 2002/44/EC and reduce the level of vibration to which employees may be exposed and provide, inter alia, for risk assessment and the provision to employees of suitable information and training. The Safety, Health and Welfare at Work (Control of Noise at Work) Regulations 2006 give effect to Council Directive 2003/10/EC and set new levels for exposure to noise at work and include measures in respect of matters such as safety equipment, risk assessment, technical and organisational measures for noise reduction and worker training. The music and entertainment sectors are exempted from the regulations until 15 February 2008 and will continue to be governed by the previous regulations.12 The Safety, Health and Welfare at Work (Exposure to Asbestos) Regulations 2006 give effect to Council Directive 2003/18/ EC and re-transpose a number of earlier asbestos related Directives.13 The regulations replace several prior sets of regulations in this area and represent a major overhaul of the control of risk generated by exposure to asbestos. Other regulations introduced were the Safety, Health and Welfare at Work (Work at Height) Regulations 2006 (SI 318/2006) and the Safety, Health and Welfare at Work (Construction) Regulations 2006 (SI 504/2006). This begins the process of replacing the regulations introduced under the Safety, Health and Welfare at Work Act 1989, but does not yet provide any replacement for one of the most important sets of regulations under that Act – the Safety, Health and Welfare at Work (General Application) Regulations 1993 (SI 44/1993, amended by SI 11
12
13
[2005] IEHC 100; see Quill (fn. 2) no. 6. The procedural ruling in respect of the appeal is at [2006] IESC 62, available at http://www.bailii.org/ie/cases/IESC/2006/S62.html. The European Communities (Protection of Workers) (Exposure to Noise) Regulations 1990 (SI 157/1990). Directive 83/477/EEC, Directive 91/382/EEC and Art. 12 of Directive 87/217/EEC.
4
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188/2001 and SI 53/2003). The availability of civil action for breach of the new regulations was considered in the treatment of the principal Act in the 2005 report.14 3. Mental Health Act 2001 (Commencement) Order 2006 (SI 411/2006)
5
This instrument brings into effect the bulk of the provisions of the long awaited mental health legislation. From a tort law perspective one provision is of particular importance; sec. 73 governs civil proceedings against persons purporting to act under the provisions of the legislation and requires leave of the IEHC before such proceedings can be instituted. This provision is significantly more favourable to prospective plaintiffs making, inter alia, claims of medical negligence, battery or false imprisonment against doctors or hospitals, compared to the previous provision. Details of the change in the law are outlined in more depth in the 2001 report.15
B. CASES 1. Wildgust and Carrickowen Ltd. v Norwich Union Ltd. Supreme Court, 22 March 2006, [2006] IESC 19; [2006] 1 Irish Reports (IR) 570; [2006] 2 Irish Law Reports Monthly (ILRM) 28: Negligent Misstatement16 a) Brief Summary of the Facts
6
The first plaintiff and his wife obtained a policy of life insurance from the defendant, which was assigned to a third party – Hill Samuel Merchant Bankers – in connection with a loan obtained from Hill Samuel by the second plaintiff, a company owned by the first plaintiff and his wife. In March 1992 the direct debit from the first plaintiff’s bank was not paid and the life policy lapsed. The first plaintiff became aware of this in June 1992, the delay resulting from a bank strike and a postal strike. In April 1992 Hill Samuel contacted the defendant, having become aware of the lapse in payment, but was incorrectly informed that an alternative payment had been made by the first plaintiff. Hill Samuel would have paid the premium in order to preserve the policy. The first plaintiff’s wife died in early 1993, but the defendant refused to pay out on the lapsed policy. The plaintiffs sued, claiming that they suffered financial loss as a result of a negligent misstatement by the defendant. The plaintiffs’ claim failed in the IEHC on the ground that it would not be reasonable to impose a duty in respect of a plaintiff who was not the recipient of the statement, had no knowledge of the statement being made to a third party and had placed no reliance on the statement. The plaintiffs appealed to the IESC. 14 15
16
Quill (fn. 2) no. 1–2. E. Quill, Ireland, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2001 (2002) no. 1 and no. 93–95. http://www.bailii.org/ie/cases/IESC/2006/S19.html. Noted by R. Ryan/D. Ryan (2006) 1 (3) Quarterly Review of Tort Law (QRTL) 13.
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b) Judgment of the Court
The IESC upheld the appeal. Geoghegan J noted that the distinction between negligent misstatements and other forms of negligence and the special control factors used by the English courts to determine the duty question in respect of statements were principally directed at preventing indeterminate liability. As there was no immediate indeterminacy problem in the case at bar, there was no need for an Irish court to adopt those particular controls. He noted that, while personal reliance on a misrepresentation was usually present in cases of negligent misstatement, it was not an essential prerequisite to liability. He also took guidance from cases on liability for negligent performance of services, which are closely comparable to misstatement cases, but where personal reliance is often absent.17 The facts here disclosed a sufficiently proximate or special relationship between Mr. Wildgust and Norwich Union; the harm was reasonably foreseeable and it was fair in the circumstances to impose a duty on the defendant.
7
Kearns J, in a similar vein, found that Mr. Wildgust and Hill Samuel “were both within a limited and determinate class of persons with a direct interest in the transaction” and so were neighbours for the purposes of a duty of care. He further noted that the House of Lords, in Spring v Guardian Insurance plc,18 had accepted that liability could arise from third party reliance on a misrepresentation. Denham J concurred with both judgments.
8
c) Commentary
The IESC decision is to be welcomed, inasmuch as it emphasises that personal reliance is not an essential prerequisite to the existence of a duty of care in cases of negligent misstatement. Conceptually, reliance serves a causal function in such cases and it should not matter whether the reliance is that of the plaintiff or a third party, as long as the manner in which the statement is likely to give rise to a loss to the plaintiff can be readily anticipated by the defendant.19
9
Anther welcome feature of the decision is that it aligns negligent misstatement more closely with the general duty of care in negligence as a whole. While both judgments acknowledge that there is a discrete line of authority on negligent misstatements, in addition to those authorities they both employ general negligence principles derived from the neighbour principle in
10
17
18 19
He cited Wall v Hegarty [1980] Irish Law Reports Monthly (ILRM) 124 and White v Jones [1995] 2 Law Reports, Appeal Cases (AC) 207. [1995] 2 AC 296, involving a reference to a prospective employer of a former employee. On the causal function of reliance see C. Witting, Liability for Negligent Misstatements (2004) [9.75] ff.; E. Quill, Maintaining the Distinction Between Duty and Liability (1998) 20 Dublin University Law Journal (DULJ) 183 at 191 ff. The matter is more fully considered in the context of fraudulent representations, see H.L.A. Hart/T. Honoré, Causation in the Law (2nd ed. 1985) 192–194; C. Rendell/M. Percival, Deceivers Ever: A Tale of Two Shopping Centres (1999) 7 Tort Law Review (Tort L Rev) 24; Levy v Langridge (1838) 4 Meeson & Welsby (M & W) 337; Edgington v Fitzmaurice (1885) 29 Law Reports, Chancery Division (Ch D) 459; Gould v Vaggelas (1985) 157 Commonwealth Law Reports (CLR) 215; also the judgment of Lord Wensleydale in Smith v Kay (1859) House of Lords Cases (HLC) 750.
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Donoghue v Stevenson,20 as clarified in Caparo Industries Ltd. v Dickman21 and Glencar Explorations plc v Mayo County Council22 and treat misstatement as a defined sub-category of the broader principle. On the narrower question of whether the application of the law to the facts was correct, one could argue for the exclusion of a duty on the basis of self-responsibility. The issue was not directly addressed in either judgment, but it could be argued that the plaintiff had constructive knowledge of the problem and was in a position to remedy the situation himself and so, as a matter of policy, should not be owed a protective duty by a third party. The plaintiff had, after all, been contacted by Hill Samuel about the problem in April and could have checked directly with the defendant at that point. The plaintiff’s belief that he had three months’ spare premium paid on the policy was based on an earlier overpayment to the defendant, but this had been repaid (albeit to his companies’ account, rather than his personal account). Counter to this, it could be argued that the courts will not take such a drastic line against private individuals dealing with seasoned corporations. Historically, the Irish courts have shown a reluctance to deny a duty of care on the basis that the plaintiff was in as good a position as the defendant to provide the necessary protection against the loss.23 A rare example of an outright denial of duty is John c. Doherty Timber Ltd. v Drogheda Harbour Commissioners.24 In this case the defendant gave the plaintiff permission to leave goods on its property and the plaintiff sued for loss caused when vandals damaged the goods. The IEHC held that the defendant was not under a duty to provide security measures to protect the plaintiff’s goods, as the plaintiff could readily anticipate the risk and take appropriate measures. Wildgust can be distinguished from Doherty on the basis that there was a prior relationship between the parties and a positive contribution to the risk by the defendants in Wildgust, whereas in Doherty there was no relationship between the parties, other than a bare permission to permit the goods to be left on the property, and the plaintiff was seeking to impose an affirmative duty on the defendant. 2. Sheridan v Kelly & McDonald IESC, 6 April 2006, [2006] IESC 26; [2006] 1 IR 314: Trespass, Negligence, Right to Jury Trial25 a) Brief Summary of the Facts
11
The plaintiff claimed that he was repeatedly sexually assaulted by the first defendant, a Christian Brother and principal of the school that the plaintiff attended. The second defendant was sued in a representative capacity on behalf of the religious organisation. The pleadings included claims for trespass to the person, negligence and breach of constitutional rights; the claim against 20 21 22
23
24 25
[1932] AC 562. [1990] 2 A.C. 605. [2002] 1 Irish Reports (IR) 84; noted in Quill (fn. 15) no. 3–5; R. Byrne/W. Binchy, Annual Review of Irish Law 2001 (2002) 554 ff. It is more usual for the courts to find contributory negligence on the plaintiff’s behalf, allowing for an apportionment of responsibility between the parties, see B.M.E. McMahon/W. Binchy, The Law of Torts (3rd ed. 2000) [2.26]. [1993] 1 IR 315; see also E. Quill, Torts in Ireland (2nd ed. 2004) 29 ff. http://www.bailii.org/ie/cases/IESC/2006/S26.html.
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the second defendant included both vicarious and direct liability. The plaintiff sought trial by judge and jury, but the second defendant sought and was granted a motion transferring the case to the personal injury list to be tried without a jury. The plaintiff appealed. b) Judgment of the Court
The IESC allowed the appeal and found that the plaintiff was entitled to a trial before a jury. Sec. 1(1) of the courts Act 1988 abolished juries in IEHC actions “in respect of personal injuries to a person caused by negligence, nuisance or breach of duty”. Sec. 1(3) preserved the jury trial for cases of intentional trespass to the person. Subsec. (3)(b) applies to cases where the trespass claim is accompanied by a claim for another cause of action “in respect of the same act or omission” and only allows the court to refuse a jury trial if it appears that it is unreasonable to claim damages for trespass. The dispute between the parties centred on whether the different claims arose “in respect of the same act or omission”. The second defendant argued that the claim of direct negligence in failing to control or supervise the first defendant amounted to different conduct and so was not “the same act or omission” on which the other claims were based. Fenelly J, for the court, held that since all of the harm for which compensation is claimed stemmed originally from the acts of the first defendant, the provisions of subsec. (3)(b) were sufficiently satisfied and, since the propriety of a trespass claim could not be seriously disputed if the plaintiff was able to substantiate the allegations made, the plaintiff’s entitlement to a jury trial was sufficiently made out. The fact that there was some further conduct, compounding the effects of the original acts complained of, was not sufficient to bring the case outside of the parameters of the subsection, so as to deprive the plaintiff of the right to a jury trial.
12
c) Commentary
The decision is consistent with the legislative intention to preserve the right to jury trials in respect of intentional trespasses. It would be incongruous if the liability of a secondary party, such as an employer, were to bring a clear trespass case outside the parameters of the provision for jury trials merely because some aspects of the facts alleged were not precisely those giving rise to the trespass claim. The claim against the employer is clearly linked closely with the trespass claim and a close parsing of the statutory provision, so as to exclude a jury trial would be inappropriate. The result of a contrary decision would probably force plaintiffs to bring separate proceedings against perpetrators and their employers, in order to ensure the availability of a jury trial against the perpetrator and this could run counter to the efficiency of having all matters raised in a single trial.
13
Of course jury trials are not without difficulties of their own, as was highlighted in a different context in the criminal case of Director of Public Prosecutions (DPP) v Nally.26 In this case the accused was on trial for murder, arising out
14
26
[2006] IECCA 128; http://www.bailii.org/ie/cases/IECCA/2006/C128.html.
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of an incident at his farm, where he fought with an intruder in his back yard, and shot him twice with a shotgun. The first shot was allegedly accidental; a struggle then ensued, in which the intruder displayed considerable force and fighting experience; the accused struck the intruder numerous times with a length of wood and fractured one of the man’s arms. As the intruder fled, the accused went to a shed to obtain cartridges for his shotgun and pursued him onto the public road, where the fatal shot was fired from a distance of a few yards. The trial judge, on an application from the DPP had directed the jury to find the accused guilty of either murder or manslaughter. On appeal the Court of Criminal Appeal (IECCA) ordered a retrial, as the judge’s direction was in contravention of an earlier IESC ruling that where an accused pleaded self-defence, the issue had to be left to the jury; although the judge could give strong guidance to the jury on an appropriate verdict, the possibility of acquittal could not be removed by judicial direction. On his retrial, the accused was acquitted.27 The acquittal reflects a very different view of the defence of reasonable force, applicable in both criminal and civil law, compared to judicial rulings on the matter. Traditionally, the courts have accepted that force may be used to protect one’s person (or property), provided the force used is proportionate to the perceived risk.28 The most favourable view of the cases would require the defendant not to act recklessly, as measured by an objective standard. It seems unlikely that a judge would rule that taking the time to retrieve ammunition to reload, following the intruder out into the public road and shooting from close range was proportionate, even though the initial threat was significant and there was a reasonable prospect of later reprisal. On the facts presented, the accused’s behaviour was intentional, or at least objectively reckless. While his behaviour may have been subjectively proportionate, none of the cases support a subjective standard of care. Differences in civil procedure, compared to criminal procedure, may permit an appellate court to overturn such a jury ruling were it to arise in a civil claim arising out of similar facts, though there is a dearth of authority on the subject, as trespass actions are exceedingly rare.29
27
28
29
The jury verdict is reported in the Irish Times, 15 December 2006; see http://www.ireland.com/ newspaper/ireland/2006/1215/1165222087669.html (accessed 16 March 2007). Similarly, in a criminal prosecution arising out of damage to an American plane at Shannon airport, a group of protesters against the war in Iraq were acquitted by a jury; reported in the Irish Times, 25 July 2006; see http://www.ireland.com/newspaper/breaking/2006/0725/breaking37.htm (accessed 26 July 2006). Gregan v Sullivan [1937] Irish Jurist Reports (Ir Jur Rep) 64; in this case a man in his thirties was struck on the lip by a 65 year old man and responded by inflicting 13 puncture wounds on the arms of the older man with a pitchfork, breaking one arm. A jury verdict of self-defence in favour of the younger man was overturned on appeal. Ross v Curtis unreported IEHC, 3 February 1989; the defendant was not held liable for injuries inflicted by a misdirected warning shot, fired from a lawfully held rifle. The plaintiff was one of a number of intruders on the defendant’s premises in the early hours of the morning and had continued to advance towards the defendant in the darkness after the defendant had issued a verbal warning. For an introduction to Irish civil and criminal procedure, see R. Byrne/J.P. McCutcheon, The Irish Legal System (4th ed. 2001) chap. 6. See also sec. 96 of the Courts of Justice Act 1924 governing civil appeals from jury trials, which permits a verdict to be overturned where it “was against the weight of the evidence or was otherwise perverse.”
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3. European Chemical Industries Ltd v MC Bauchemie Müller GmbH IESC, 14 March, 2006, [2006] IESC 16; [2006] 2 ILRM 19: Concurrent Wrongdoers, Contribution30 a) Brief Summary of the Facts
The plaintiff/respondent in these proceedings, ECI, was a defendant in proceedings taken by a Mr. D and sought to have the defendant/appellant, Müller, joined as a third party to those proceedings. Müller successfully resisted that attempt on the grounds that the notice of joinder was not served “as soon as is reasonably possible”, as required by the governing legislation.31 Having failed to have Müller joined as a third party to the original proceedings, ECI then instituted separate proceedings for contribution and the IEHC set out two issues for preliminary hearing to determine whether such separate proceedings were permissible. The first issue was whether the defective attempt to attach Müller to the original proceedings necessarily precluded the institution of separate proceedings. If not, the second question was whether the failure of that application should constitute grounds for exercising the judicial discretion to refuse to allow the separate proceedings. The IEHC answered no to both questions and held that the separate proceedings should be allowed to proceed. Müller appealed to the IESC.
15
b) Judgment of the Court
The IESC upheld the IEHC ruling on the first question and held that the separate proceedings were not necessarily precluded, but overturned the IEHC ruling on the second question. The relevant statutory provision reads as follows;
16
“(1) A concurrent wrongdoer who is sued for damages or for contribution and who wishes to make a claim for contribution under this Part –
17
(a) shall not, if the person from whom he proposes to claim contribution is already a party to the action, be entitled to claim contribution except by a claim made in the said action, whether before or after judgment in the action; and
18
(b) shall, if the said person is not already a party to the action, serve a thirdparty notice upon such person as soon as is reasonably possible and, having served such notice, he shall not be entitled to claim contribution except under the third-party procedure. If such third-party notice is not served as aforesaid, the court may in its discretion refuse to make an order for contribution against the person from whom contribution is claimed.” The first question concerned the first sentence of paragraph (b) and considered whether the failed notice triggered the preclusion of separate proceedings. The IESC held that a person who served an ineffective notice should be treated in the same way as a person who had not served a notice at all and should be
30 31
http://www.bailii.org/ie/cases/IESC/2006/S16.html. Sec. 27(1)(b) of the Civil Liability Act 1961.
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dealt with under the second sentence of paragraph (b).32 The second sentence had previously been held by the IESC to mean that contribution actions could only be taken by way of separate proceedings if contribution had been sought in compliance with either sec. (a), or the first paragraph of sec. (b), but the grounds for exercise of the discretion were not addressed in the earlier case.33 In the present case, the IESC held that, as the primary purpose of sec. 27 was to encourage the gathering of all issues into a single set of proceedings wherever possible, separate proceedings should be discouraged. In consequence, apart from any question of prejudice to the defendant arising out of separate proceedings, the trial judge’s discretion should be based on the justice of the case, including the reasons for failure to comply with the procedure for third-party joinder and the presumption should be against separate proceedings being permitted. Geoghegan J, delivering the judgment of the court, expressed the matter as follows; “[i]f there was no good reason why a third-party notice could not have been served in accordance with the Act, then, I would take the view that in most cases, irrespective of any question of prejudice, the new proceedings should be rejected. There may be exceptional cases in which as a matter of justice the action should not be rejected on that account alone. Otherwise, a clear obligation to adopt a third-party procedure could become hopelessly weakened to the point of being meaningless.” The case was remitted to the IEHC to reconsider the exercise of discretion, in light of this ruling, bearing in mind that factors considered and ruled upon in assessing reasonableness in the third-party hearing would have to be considered res judicata. c) Commentary
20
Given that the legislation governing concurrent wrongdoers has been operating for 45 years, it is surprising that this is the first time the IESC has had to directly address the crucial question of whether separate proceedings for contribution may be taken by one wrongdoer against another. The interpretation of the legislation by the IESC is doctrinally correct.34 Based on a literal interpretation of the legislation, an outright bar on separate proceedings is not possible, since the legislation clearly states that there is a judicial discretion to refuse a contribution order. There must be some circumstances where that discretion is not exercised. If the legislature had intended an outright ban, it would not have provided for such discretion. The legislation did not, however, provide any express criteria for the exercise of discretion and so a purposive approach is required to discern the content of the provision. The IESC’s approach is based on the general tenor of the legislation, which aims to consolidate all issues into a single set of proceedings wherever possible. In light of that, it is not surprising that the threshold required of a litigant to justify a second set of proceedings is high. 32
33 34
Approving an earlier IEHC decision to the effect that the first sentence of paragraph (b) was intended to apply to successful third-party notices only; McElwaine v Hughes, unreported IEHC 30 April 1997; Barron J. The Board of Governors of St. Laurence’s Hospital v Staunton [1990] 2 IR 31. Byrne/McCutcheon (fn. 29) chap. 14 provides comprehensive treatment of the tenets of statutory interpretation in Irish law.
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4. L.O’K v L.H, The Minister for Education and Science, Ireland & The Attorney General (AG) IEHC, 20 January 2006, [2006] IEHC 13: Sexual Assault, Limitation of Actions, Vicarious Liability35 a) Brief Summary of the Facts
The plaintiff alleged that she was sexually assaulted by the first defendant, who was the principal of the school she attended, on a number of occasions in 1973. Due to the psychological consequences, she did not become aware of the link between the abuse and her ongoing psychiatric problems until June 1998. She instituted proceedings on 29 September 1998. The first defendant did not contest the allegations and a default judgment was obtained against him.36 At the close of the plaintiff’s case against the State defendants, a non-suit was granted in respect of allegations of negligence for not having procedures in place to detect and prevent the abuse which occurred. The State defendants then argued that the claim was statute barred, or alternatively that it should be dismissed under the court’s discretion, due to undue delay. The State defendants also denied being employers of the school principal and, consequently, were not vicariously liable for his actions.
21
b) Judgment of the Court
On the limitations issues, deValera J ruled that sec. 3 of the Statute of Limitations (Amendment) Act 1991 was applicable and, consequently, the time period for initiation of a claim did not commence until June 1998, so the plaintiff’s proceedings were in time. He further held that the delay between the occurrence of the incidents and the initiation of proceedings did not prejudice the defendants, as the factual allegations were not contested and the dispute centred entirely on issues of law. On the question of vicarious liability, deValera J followed the IEHC decision in Delahunty v South Eastern Health Board and Others37 and held that the relationship between the Minister and the first defendant was not that of an employer and employee and so the State defendants could not be found vicariously liable for the first defendant’s behaviour. On a final point, deValera J ruled that claims for interference with the plaintiff’s constitutional rights to bodily integrity and privacy could not be used to circumvent the effects of the application of principles of tort law to the facts of the case.38
22
c) Commentary
The rulings in relation to the limitation of actions, dismissal of claims and the constitutional issues are correct in substance, though there may be a technical issue with respect to the applicable legislation in the case of the limitations is35 36
37 38
http://www.bailii.org/ie/cases/IEHC/2006/H13.html. The plaintiff was later awarded € 305,104 by the IEHC against the perpetrator of the abuse; [2006] IEHC 393; made up of € 150,000 general damages to date, € 50,000 general damages in the future, € 50,000 aggravated damages, € 50,000 exemplary damages and € 5,104 special damages. [2004] 4 IR 361. Relying on the IEHC decision in W (No. 2) v The AG [1997] 2 IR 141.
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sue. The judgment does not clearly articulate all of the claims made, but some at least appear to involve intentional trespass. The 1991 Act applies to claims “in respect of personal injuries to a person caused by negligence, nuisance or breach of duty” and that phrase has been held not to include claims for trespass to the person.39 However, even if the 1991 Act did not apply, the plaintiff would be entitled to an extension of time under the Statute of Limitations (Amendment) Act 2000. This Act provides that psychological injury resulting from childhood sexual abuse constitutes a disability for the purposes of sec. 49 of the Statute of Limitations 1957, delaying the running of time against the plaintiff until the disability has ceased. Under this provision June 1998 would still be the effective date for the beginning of the running of time.
24
The ruling on the absence of vicarious liability on the part of the State is more problematic. The State has taken contrasting positions in recent cases arising out of abuse in schools and those from residential institutions, denying vicarious liability in the former category, while accepting it in the latter.40 On the face of it, both services historically were provided and paid for under similar structures; the State financed the service and provided a supervisory regime to ensure maintenance of standards, but the day to day management and delivery of the services was provided by private bodies, which were often religious institutions.41 The difference in approach by the State is not clearly articulated in the cases, but may stem from its differing constitutional functions in respect of education on the one hand and supplanting the parental role in exceptional cases on the other. Primary constitutional responsibility for education is placed on parents, with the State being given a facilitative and regulatory role.42 In respect of children affected by a serious and lasting breakdown of parental responsibility, there is a mandatory responsibility on the State to intercede and protect children.43 Thus, while both educational and residential services were delivered via independent contractors, its position in tort differed. In respect of schools, the facilitative nature of the State’s role suggests that it can rely on the normal rule of not being vicariously liable for independent contractors. The mandatory nature of its obligations in respect of children in need of protection supports the view that the obligation is non-delegable; thus, performance of the task may be contracted out, but legal responsibility for the manner of delivery cannot thereby be evaded. Residential institutions also exercised juvenile justice functions, which differ again from both of the educational functions 39
40
41
42
43
Devlin v Roche [2002] 2 ILRM 192, noted in E. Quill, Ireland, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2002 (2003) no. 12–14. See, for example, Connellan v St. Joseph’s Kilkenny & Others [2006] IEHC 119, where the State conceded vicarious liability (it did, however, contest the occurrence of some of the instances of abuse alleged by the defendant). The State also established a statutory compensation scheme for persons abused in residential care under the Residential Institutions Redress Act 2002. Now residential services are provided directly by the State, either through the health service in respect of orphaned and abandoned children or the prison service in the case of juvenile offenders. Art. 42 (1) establishes parental responsibility; Art. 42 (2)–(4) and Art. 44 (2) (4) set out the role of the State; see G.W. Hogan/G.F. Whyte (eds.), Kelly’s Irish Constitution (4th ed. 2003). Art. 42.5, Hogan/Whyte (fn. 42) [7.6.226] ff.
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discussed. The administration of justice is plainly a core State function and must surely be regarded as non-delegable. The State’s position with respect to schools is consistent with established rules on vicarious liability, since control has been a central feature in determining a sufficient relationship and financial arrangements have generally been disregarded.44 The degree of State involvement in education raises serious questions as to whether it is truly comparable to established categories of cases and whether an absence of responsibility is sustainable. The foregoing hypothesis masks some further inconsistency in the State’s position, in that it initially disputed vicarious liability for workers in residential institutions. In the Delahunty case, cited by the IEHC, the claim related to a residential institution, yet the State successfully argued that it was not the employer of the perpetrator of the abuse. The result in the case could still be justified on the basis that the plaintiff was not a resident of the institution, but a visitor and so not the beneficiary of a non-delegable duty; however, this was not articulated as the basis for the decision. The change in approach by the State in residential institutions cases and its refusal to do likewise in respect of schools is difficult to fully rationalise. 5. O’Gorman v Jermyn & Ors IEHC, 5 December 2006, [2006] IEHC 398: Medical Negligence; Causation45 a) Brief Summary of the Facts
The plaintiff, a young man of 21 years of age, underwent a biopsy for an abdominal complaint. His tissue sample was mixed up with another sent to the laboratory in or about the same time. As a result, he was misdiagnosed as having incurable stomach cancer and had his stomach removed. After the removal, later analysis showed the stomach was not cancerous and the laboratory error came to light. The plaintiff sued the hospital and all of the persons involved in his diagnosis and treatment. The hospital and the laboratory staff denied that the mix up amounted to a breach of duty and further argued that, even if they had been in breach of duty, the surgeon’s failure to question the diagnosis and conduct further tests broke the causal connection between their negligence and the plaintiff’s injury.
25
b) Judgment of the Court
Lavan J found that the hospital and its laboratory staff were liable to the plaintiff. The hospital defendants did not give any evidence, but rather submitted the report of the expert it commissioned to investigate the incident. Due to a lack of evidence as to which member or members of staff were actually negligent, Lavan J could only conclude that the error arose in the pathology department and all of the defendants from that department and the hospital itself were liable. The surgeon was found not to have been negligent; his reliance on the pathology department was found to be reasonable, particularly so as the test that the other defendants suggested he should have undertaken is less accurate than a biopsy. 44
45
Lynch v Palgrave Murphy Ltd. [1964] IR 150; Phelan v Coilte Teoranta [1993] 1 IR 20; see McMahon/Binchy (fn. 23) [43.10] ff.; Quill (fn. 24) 497 ff. http://www.bailii.org/ie/cases/IEHC/2006/H398.html.
26
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c) Commentary
27
The decision accords with established principles. The mix up in the samples must be presumed to be negligent, unless the defendants tender an adequate explanation as to how else it may have occurred.46 Negligence on the part of the surgeon is difficult to infer; it was alleged by the other defendants that the rarity of the condition diagnosed,47 along with disparities between the diagnosis and the symptoms presented and the availability of an alternative diagnostic test all pointed to negligence. The suggested alternative diagnostic test was less accurate than the one the surgeon believed had already been conducted, so a result contrary to the biopsy might have been discounted in any case. Inconsistency between symptoms and diagnosis would principally be a matter for the specialist making the diagnosis and so, as a general rule, would not be something one would expect the surgeon to question. This then leaves the rarity of the condition as a ground for doubting the diagnosis; a legal test that requires surgeons to doubt a diagnosis simply on grounds of the rarity of the condition could lead to chaos in the health service. Surely the point of having a specialist department for investigation and diagnosis is to take the responsibility away from the surgeon, leaving him to trust the information provided by those specialists. While there may be exceptional cases warranting a departure from this view, the current case could not be regarded as such, in light of the fact that the hospital failed to provide the court with any direct evidence of its procedures or the history of the relationship between its surgeons and the pathology department. Even if there had been negligence on the part of the surgeon it would be difficult to regard this as completely exonerating the pathology department.48
28
An unseen, but central, element behind this dispute is the funding of medical negligence claims in Ireland. The hospital and doctors each carry their own coverage for their legal liabilities and the attempt to place the blame on the surgeon was plainly an attempt to shift the financial responsibility on to his indemnifier and away from that of the hospital. Since 2001 the State has been seeking to introduce an enterprise liability scheme under which the hospitals would carry liability for all medical malpractice cases in respect of patients in their care, ending the duplication of indemnification and simplifying claims by getting rid of the type of disputes seen in this case.49 A stumbling block has been a lack of agreement between the government and the consultants over historical liability (i.e. liability for cases where the malpractice incident was 46
47 48
49
The presumption either arises as an inference under the maxim res ipsa loquitur, or on the basis of a reversal of the burden of proof on the grounds of the defendant’s superior capacity to establish what happened. These two grounds have become somewhat intermingled in Irish case law, see Quill (fn. 24) 441 ff. Of the order of 1 in a hundred thousand. For further consideration of the novus actus interveniens principle of legal causation in Ireland see McMahon/Binchy (fn. 23) [2.24] ff.; Quill (fn. 24) 407 ff. The State’s position is set out in B. Phelan, The Road To Enterprise Liability (Conference Paper by a Principal Officer from the Department of Health and Children delivered at a conference hosted by Hayes & Sons Solicitors, The Challenge of Change: Medical Indemnity in the 21st Century, Dublin 16 February 2001). The proposed scheme is similar to those operating in the UK, Australia and the USA.
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prior to the beginning of the scheme). The consultants were concerned that if they were no longer paying premiums, they would no longer receive indemnity for past events and so would be personally liable in such cases and face potential bankruptcy. This view stemmed from the fact that their indemnity cover is provided by mutual associations, rather than insurers, so indemnification is discretionary and may be conditional on continued membership. This concern has been borne out by the IESC decision in Barry v Medical Defence Union, where it was held that the defendant was not contractually bound to indemnify the plaintiff against civil liability or the cost of disciplinary hearings.50 The only obligation on the defendant was to act fairly in making a determination on whether to give discretionary assistance in a given case. The net result is that the enterprise liability scheme is not yet operational and disputes between hospitals and doctors on the allocation of responsibility continue, adding significantly to the time and cost of cases. The result is that the plaintiff in the current case, arising out of an operation on 19 March 2002, had to wait almost 4 years for resolution of what should have been a straightforward case.
C. LITERATURE 1. J. Healy, Principles of Irish Torts (Clarus Press, 2006) This is a comprehensive student text on the modern Irish law of torts. It is a welcome addition to the market, providing a fresh perspective on a vast subject. Having said that, there are some shortfalls in the work as a teaching tool for newcomers to the subject. The most significant of these is the tendency of the author to diverge into tangential issues; for example, during the section on defences, the author discusses cases on the effect of the plaintiff’s drunkenness on the defence of contributory negligence, but then digresses into a more general treatment of drunkenness, including affirmative duties on others to protect drunken individuals. The discussion would have fit more appropriately in the treatment of affirmative duties in the following chapter (some 26 pages later). Likewise, that discussion on affirmative duties, although located in the section on duty of care, devotes much of its time to questions of the standard of care, rather than focusing on the duty question. It makes it difficult for a student to grasp the conceptual distinctions drawn by the law when a textbook so fluidly transgresses boundaries between discrete issues.
29
2. U. Connolly/S. Quinlivan, Tort: Cases and Materials (Thomson Round Hall, 2006) This book contains an excellent selection of extracts from key Irish tort cases and some English cases, principally those that have the most influenced development in Ireland. Extracts from one Scottish and one Canadian case are also included.51 The extracts are preceded by introductory overviews of each 50 51
[2005] IESC 41. Miller v Addie & Sons (Collieries) Ltd. [1934] Session Cases (SC) 150 and Reibl v Hughes (1980) 114 Dominion Law Reports (DLR) (3d) 1.
30
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of the topics covered and followed by comment and question sections that are cross referenced to further cases, including a limited number from America, Australia, Canada and other jurisdictions. The book also contains some extracts from key legislative provisions and some further legislative references. While the book is strong on the cases side of the title, the materials side is less developed and the wider literature of tort law is not embraced in the work. The book will provide tort students (generally first or second year students) with a good appreciation of the main facets of current Irish tort law. At 548 pages it is more digestible for students than its main rival, B.M.E. McMahon/W. Binchy, Casebook on The Irish Law of Torts (2005), which runs to 1304 pages. 3. R. Byrne/W. Binchy, Annual Review of Irish Law 2005 (Thomson Round Hall, 2006)
31
Once again the review delivers an extensive and insightful chapter on tort law. Some related issues are also raised in other chapters, such as damages for breach of constitutional rights in the constitutional law chapter and procedural issues in the practice and procedure chapter. 4. Quarterly Review of Tort Law
32
This is a new journal on the Irish market and provides a further avenue for rapid response to new developments, containing as it does thus far mainly case notes and responses to new legislation and legislative proposals.52 The first volume has articles on diverse topics, including professional negligence,53 defences,54 defamation and privacy.55 5. L. Heffernan, Gauging the Reliability of Scientific Evidence in Tort [2006] 6 Judicial Studies Institute Journal 140
33
The author provides an overview of the role of expert witness and related rules of evidence, before moving on to the key focus of the article – the reliability of such evidence, focusing on tort cases. She notes the rudimentary state of the law with respect to how a fact finder (usually a judge in tort cases) is to weigh the evidence of experts. She then compares recent developments in 52
53
54
55
It does have some broader thematic pieces also; W. Binchy, Damages in Tort Litigation: New Judicial Approaches (2006) 1 (2) QRTL 1; N. Cox, Employers’ Liability for Workplace Stress: New Legal Developments (2006) 1 (2) QRTL 10; W. Binchy, International Tort Litigation: New European Horizons (2006) 1 (3) QRTL 24; J. Blennerhassett, Toxic Torts and the Irish Courts – What Fear for the Future? (2006) 1 (4) QRTL 27. C. Craven, Conflict of Interest: The Solicitor’s Duty in an Impossible Situation (2005/6) 1 (1) QRTL 29; C. Craven, Medical Negligence and the Dunne Principles: What Do the First and Second Principles Mean? (2006) 1 (3) QRTL 1; C. Craven, Medical Negligence and the Dunne Principles: The Third and Later Principles (2006) 1 (4) QRTL 12. R. Ryan, Ex Turpi Causa: Negligence and Dangerous Drivers (2005/6) 1 (1) QRTL 16; R. Ryan, Pleading Contributoty Negligence: Recent Developments (2006) 1 (4) QRTL 7; W. Binchy, The Seat Belt Defence: New Questions (2006) 1 (4) QRTL 22. M. McGonagle, Recent Developments in Defamation Law (2005/6) 1 (1) QRTL 7; M. McGonagle, Developments in Defamation Law (2006) 1 (2) QRTL 25; M. McGonagle, Modernising Defamation Law (2006) 1 (3) QRTL 19 (a critical note on the Defamation Bill 2006); M. McGonagle, A Tort of Privacy? The Privacy Bill 2006 (2006) 1 (4) QRTL 1.
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Ireland and England on court appointed experts. While these were designed to facilitate case management and reduce costs, they may have implications on the substantive interpretation of disputed issues, but the author notes that it is too early to assess these implications. She then examines the more developed jurisprudence on reliability in US law and concludes by noting that differences in Irish and American tort processes may preclude a wholesale adoption of the American approach, but there is room for the adoption of a suitably modified approach to provide courts with a considered set of evaluative criteria for assessing the credibility of expert evidence. 6. R. Ryan/D. Ryan, Defamation: Recent Developments in Relation to the Reynolds Case (2006) 24 Irish Law Times (ILT) 311 The authors analyse the House of Lords decision in Jameel v Wall St Journal Europe Sprl56 and other recent English cases on the defence of qualified privilege, as reconsidered in Reynolds v Times Newspapers Ltd.57 The article goes on to consider its implications in Ireland in light of the IEHC decision in Hunter & Callaghan v Gerald Duckworth & Co. Ltd. and Blom Cooper58 and the proposed defence of reasonable publication in sec. 24 of the Defamation Bill 2006. Defamation reform is considered in two further articles. J. Morris, General Damages and the Defamation Bill 2006 – Real Reform? (2006) 24 ILT 283 provides a comparative analysis of general damages for defamation and argues that the 2006 Bill does not do enough to curb excessive awards. E. Carolan, Defamation and Privacy Reform: A Democratic Model of Media Reform (2006) 12 Bar Rev 147 critically appraises reform proposals in light of differing models of press freedom, favouring a democratic model based on the educative function of the media.
34
7. J. Morris, Towards a Modern Privacy Law in Ireland? Recent Developments in Privacy Law (2006) 24 ILT 39 Pre-dating the publication of the Privacy Bill 2006, which proposes the introduction of a statutory tort of violation of privacy, this article reviews Irish, English and European Court of Justice case law on protection of privacy and considers the potential for judicial development of privacy protection in Ireland.
35
8. R. Ryan/D. Ryan, A Lost Cause? Causation in Negligence Cases: Recent Irish Developments (2006) ILT 91 (Part I) & 107 (Part II) Part I analyses the development of causation by the House of Lords in Fairchild v Glenhaven Funeral Services Ltd.59 and the IESC decision in Quinn v
56 57 58
59
[2006] 3 Weekly Law Reports (WLR) 642. [2001] 2 AC 127. [2003] IEHC 81, noted in E. Quill, Ireland, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2003 (2004) no. 29–32. [2003] 1 AC 32, noted in K. Oliphant, England, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2001 (2002) no. 6–14; M. Legg (2003) 11 Tort L Rev 9.
36
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Mid Western Health Board60 on proof of causation in Ireland. Part II examines developments in respect of loss of chance claims. 9. C. Best, The Law on Psychiatric Damage and the ‘Irrational’ Fear of Floodgates (2006) 24 ILT 58 (Part I) & 78 (Part II)
37
Part I focuses on the historical evolution of claims for negligently inflicted psychiatric injury; Part II examines the IESC decision in Fletcher v Commissioners of Public Works61 and concludes that the fear of floodgates, evident in judicial decisions, is misplaced and unduly restricts the coherent development of the law.
60 61
[2005] 4 IR 1. [2003] 1 IR 465; noted in Quill (fn. 58) no. 4–8.
XIII. Italy Elena Bargelli
A. LEGISLATION 1. Legge (Law, L.) 8 February 2006, no. 54, Art. 709-ter codice procedura civile (Procedural Civil Code, CPc), (Joint Custody of Children – Damages for Breach of Parental Duties or NonFulfillment of Judge’s Order) The present statute regulates the different procedures regarding the custody of children in the case that their parents divorce. It introduces the so-called “joint custody” as a general procedure of custody.
1
The new art. 709-ter CPc, however, is particularly focused on how to resolve the controversy arising between the two parents about parental authority (potestas).
2
If one parent does not fulfil the judge’s orders, or in any way harms the interest of the child, or, jeopardizes the course of the custody, the judge can change what was previously stated, and order:
3
1) 2) 3) 4)
a caution toward the parent who has not fulfilled the judge’s orders; compensation to be awarded to the child from one of the parents; compensation to be awarded to one of the parents from the other parent; a fine, which varies from € 75 (minimum) to € 5,000 (maximum) to the Cassa delle Ammende, paid by the parent who did not fulfil the judge’s orders.
As regards tort law developments, the most significant dispositions are art. 709-ter no. 2 and 3 CPc, which introduce liability for damages in case of breach of parental duties. Up to now, the violation of family duties gave rise to several remedies, such as the loss of parental authority (art. 330 Cc), or the judicial order of separation of the child from the parent (art. 330 subs. 2 Cc). However, no disposition stated liability for damages against one of the parents to another family member.
4
Art. 709-ter no. 2 and 3 CPc are in line with the most recent developments of case law, which have deviated from the traditional separation between family
5
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law remedies and tort liability. An increasing number of decisions have entitled a family member to claim pecuniary compensation from another member in case that the breach of marriage or parental duties have brought about psychical damage or pain and suffering.1 Now art. 709-ter, no. 2–3 CPc confirms this tendency. 2. L. 21 February 2006, no. 1022 (Liability for Illegal Tapping)
6
The present statute is aimed at discouraging the illegal use of documents referring to phone calls or e-mail correspondence. In particular, the public prosecutor, after recording such documents, must order their destruction within 48 hours. The present statute is particularly significant for criminal law.
7
However, a disposition which is also relevant for tort law liability is included in this statute, namely art. 4, whose subsec. 1 provides the possibility to seek punitive damages from the party who published this type of data in an illegal manner. People charged with this offence are normally the author of the article, the director, and the editor. 50 cents for every printed copy are to be paid and this amount may vary from € 50,000 to € 1 million depending on the number of users and through which medium the information is distributed, e.g. radio, TV or computer. However, the amount of damages awarded in respect of this illegal distribution of information cannot be less than € 10,000. It is worth noting that this provision does not require any proof of the damage the victim has suffered, and, therefore, it constitutes a form of punishment.
8
The claim can be submitted by those whose documents are referred to. This claim is subject to a limitation period: five years after the release of the publication.
9
From a tort law standpoint, the amount of money which is to be paid according to art. 4 subs. 1 may concur with the existing liability rules for violation of personality rights. In particular, in Italian law the illegal use or publication of personal data gives rise to compensation for damage suffered according to art. 15 Decreto legislativo (Dlg.) no. 196/2003 (data protection law). This provision states that whoever causes damage to another by the illegal use of personal data is held to pay damages according to the liability for dangerous activity rule (art. 2050 Cc). The subsequent section of art. 15 Dlg. no. 196/2003 specifies that the victim is also allowed to seek damages for non-pecuniary losses. The same acts may fall under both art. 4 subs. 1 L. 102/2006 and art. 15 Dlg. 196/2003. 1
2
For general remarks see, in the last year, G.M. Riccio, Violazione dei doveri coniugali e risarcimento del danno, Danno e responsabilità (DR) 2006, 585 ff.; A. Querci, Responsabilità per violazione dei doveri familiari, DR 2007, 13 ff. Among the most recent decisions see Cassazione (Italian Supreme Court, Cass.), 10 May 2005, no. 9801, DR 2006, 37 ff., with comments of F. Giazzi, Anche i matrimoni in bianco hanno un costo. DR 2006, 483, with comment of G. de Marzo, Novità normative in materia di danni da circolazione stradale and DR 2006, 940 with comment of A. Maietta, La legge no. 102/2006 sulle lesioni personali nella r.c.a.: osservazioni critiche in prima lettura.
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Art. 4 L. no. 102/2006 provides for the case that the victim seeks both the sum of money stated by subs. 1 and compensation according to the general liability rules. In this case the victim might be awarded compensation twice for the same tort: firstly under art. 4 L. 102/2007, secondly under art. 15 Dlg. no. 196/2003. Art. 4 subs. 2, however, specifies that in awarding damages according to the general liability rules, the judge must take into account the amount of money granted under subs. 1 mentioned above.
10
3. Decreto legislativo (Statute Drafted by the Government According to the Guidelines of Parliament) 3 April 2006, no. 152 (Environmental Damage)3 The present statute reforms the rules on environmental liability, which were previously stated by L. no. 349/1986.
11
Art. 300 subs. 1 defines the same environmental damage already covered by Directive 2004/35/CE: environmental damage is defined as “every measurable and significant, direct or indirect deterioration of a natural source and its own utility”.
12
Art. 300 subs. 2 explains in a more detailed way the different evaluations within the general concept of environmental damage stated above.
13
According to art. 311 subs. 2, whoever damages the environment through breaking legislative or administrative provisions or in any way through a negligent behaviour is responsible for such environmental damage. As a consequence, s/he is held to return the environment to its original state. If this is not possible, s/he will be condemned to pay an equivalent compensation for pecuniary losses to the State.
14
This article states a fault-based liability rule as does art. 2043 Cc. However, while the previous art. 18 L. no. 349/86 required a breaking of the law, art. 311 subs. 2 only requires a culpable behaviour.
15
Only the Ministry of the Environment is entitled to bring the action for liability against the tortfeasor. Local councils, natural persons and companies are not directly entitled to claim the return of the environment to its original state or the damages, but can only ask the Ministry to bring the action for liability in order to protect the environment (art. 309).
16
Local councils, individuals and companies may directly claim damages from the Ministry of the Environment in case this Ministry delayed in adopting precautionary means (art. 310). This provision seems very significant if compared with the previous art. 18 L. no. 346/1986, which did not state any liability of the State against citizens in case that it delayed in bringing the action for
17
3
For a comment see L. Prati, Le criticità del nuovo danno ambientale: il confuso approccio del “Codice dell’Ambiente”, DR 2006, 1049 ff.
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environmental damage. However, it entitled local councils to bring an action directly against the tortfeasor.
18
It is worth noting briefly the content of art. 313 subs. 7. People who suffer physical or material damage as a consequence of a direct or indirect deterioration of a natural source can claim compensation in order to protect their rights and interests. However, their action is based on general tort law rules (art. 2043 Cc for pecuniary losses, art. 2059 Cc for non-pecuniary losses or danno biologico). Therefore, this disposition aims at specifying that there could be a concurring liability of the tortfeasor according to the tort rules generally stated by the Civil Code when the deterioration of a natural source violates an individual right.
19
If the party who is held responsible for the environmental damage manages to prove that the same damage could have been caused by others, she will be exempted from any liability.
B. CASES 1. Cassazione (Italian Supreme Court) Sezioni Unite (Plenary Session, SS. UU.) 24 March 2006, 65724: Non-Pecuniary Losses as Consequence of Employee’s Demotion a) Brief Summary of the Facts
20
The plaintiff, a former employee at Rome railway station, brought an action for damages against FS (Ferrovie dello Stato) because he was demoted. The Tribunale del Lavoro (Employment Court) of Rome upheld the claim of the plaintiff and awarded a sum of damages of ITL 486,660,000. The defendant appealed to the Court of Appeal of Rome. The Court of Appeal of Rome upheld the Tribunal of Rome’s decision but awarded a lower sum of damages, ITL 186,696,000 instead of ITL 486,660,000. The Court of Appeal ruled that the inactivity of the employee had caused not only pecuniary losses, but also another kind of damage, which should have been calculated. The Court, in particular, observed how this demoting of the employee reduced his prestige among his colleagues and undermined his opportunities of developing a promising career. The Court argued that this damage had to be assessed according to the equity rule stated by art. 1226 Cc. In particular, the Court applied art. 9 of the Contratto Collettivo del Lavoro (collective employment agreement), and, as a consequence, awarded six monthly salaries to the employee. The employer appealed to the Supreme Court.
4
Corriere giuridico (CG) 2006, 787, with comment of P.G. Monasteri, Sezioni Unite: le nuove regole in tema di danno esistenziale e il futuro della responsabilità civile; Foro italiano (FI) 2006, 2334, with comments of P. Cendon, Voci lontane, sempre presenti sul danno esistenziale, and G. Ponzanelli, La prova del danno non patrimoniale e i confini tra danno esistenziale e danno non patrimoniale.
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b) Judgment of the Supreme Court
The judgment of the Supreme Court is focused on the claim for non-pecuniary losses. Prior to this case, the Supreme Court held two opposing points of view.
21
On the one hand, the Supreme Court argued that non-pecuniary loss was presumed in case of violation of a personality right, and, as a consequence, compensation for non-pecuniary losses was always allowed simply by proving the infringement of the protected interest. If this point of view were applied to the present case, non-pecuniary damages would be presumed as the unlawful demotion was proved.
22
On the other hand, the Supreme Court affirmed that non-pecuniary losses – that is, the consequences of the unlawful act on the victim’s standard of living – should be specifically proved. According to this opinion, the demoted employee should have proved that the demotion had altered his daily choices (like going to the cinema, on vacation, etc.).
23
According to both points of view, the demotion may infringe the employee’s moral personality rights and his/her physical or psychical health. However, the two opinions differ as to the content of the proof of the damage for violation of the employee’s personality rights.
24
There is clear authority on the first point of view (Cass. 13299/92, 11777/99, 14443/00, 13580/01, 15868/02, 8271/04, 10157/04). All these Supreme Court decisions aimed at compensating non-pecuniary losses without requiring the victim to prove the harm, since these detriments are implicitly included in the act of demotion.
25
There is also clear authority on the second point of view (Cass. 7905/98, 2561/99, 16972/03, 10361/04). All these judgments affirmed the necessity of proving non-pecuniary losses. The second viewpoint upheld what had previously been stated by the Tribunale del Lavoro of Rome, which had rejected the employee’s claim because of lack of further and detailed proof as to nonpecuniary losses incurred.
26
In this case, the Supreme Court supported the second opinion.
27
The Supreme Court argues that, according to the previous authority and doctrine, the liability of the employer is contractual. It is evident that both pecuniary and non-pecuniary losses suffered by the employee are related to his status as employee, and, therefore, to the contract of employment. The Supreme Court quotes two rules contained in the Italian Civil Code: art. 2103 (“demotion ban”) and art. 2087 (“protection of physical and moral integrity of the employee”). They are both connected to art. 1218 Cc, concerning breach of contractual duties. Art. 1218 Cc, combined with art. 1223 Cc, indeed excludes the employee from proving the fault of the employer in breaking his contrac-
28
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tual duty. The Supreme Court stresses that art. 2087 Cc mentioned above, because it aims to protect both moral and physical integrity of the employee, may compensate every kind of loss suffered by the employee, pecuniary or not. Since this disposition grants compensation also for non-pecuniary losses, it overcomes the limits imposed by art. 2059 Cc, which allows damages for these losses only if a legal provision so states.
29
Although the employer is responsible for breaching contractual duties, this breach cannot lead to any compensation unless the pecuniary loss suffered by the employee is proved. If that compensation were awarded without proving an evident pecuniary loss, it would be a form of punishment, which is still not recognized by the Italian legal system.
30
According to the Supreme Court, there are three different types of damage that an employer who breaches contractual duties must compensate: “danno professionale” – focused on compensating the loss of career opportunities, or the reduction of working abilities; “danno biologico” – caused by the permanent or temporary impairment of the bodily or mental health recognized by a medical legal examination, according to the definition stated by art. 5 subs. 3 L. no. 57/2001; “danno all’immagine” or “alla vita di relazione”, which is included in the more general concept of “danno esistenziale”, and is related to the employee’s fundamental right to the development of his personality rights (art. 2 of the Italian Constitution).
31
The Supreme Court outlines that the employee must prove what kind of damage he suffered.
32
As regards “danno professionale”, the employee must prove the loss of career opportunities or reduced abilities in the workplace.
33
Regarding “danno biologico”, physical or psychical pathology has to be recognized by a medical legal examination.
34
“Danno esistenziale” is outside the area of the impairment of bodily or mental health, and includes injuries to moral personality rights. This type of damage does not involve the employee’s earning capacity, but implies harm and pain which affect the employee’s daily choices, his/her social relationships and how s/he is regarded by society and the community in general. The Supreme Court specifies that “danno esistenziale” does not merely affect human beings’ sentiments and feelings – a typical feature of the so-called “danno morale” (pain and suffering) – but has an objective content, because it can be assessed by proving the worsening of the living standards consequent on the unlawful event. The victim must prove the injury to her/his personality rights by means of every type of proof (documents, witnesses, hearings, presumptions).
35
The Court argues that the employee has to prove not only the demotion, that is the breach of the employer’s contractual duty, but also how it negatively affected the victim’s living standards and ordinary life.
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Given that, the Supreme Court rejects the decision of the Tribunal because the latter awarded damages to the employee simply on the basis of the demotion and did not require proof of the consequences on the employee’s living choices.
36
c) Commentary
The present decision involves several issues. However, I will focus on the part concerning non-pecuniary losses and, in particular, the so-called “danno esistenziale”. The Supreme Court states that the employer’s breach of contractual duties may cause three types of losses: pecuniary losses, “danno biologico” (that is, that non-pecuniary loss consisting in the impairment of bodily or mental health), and other non-pecuniary losses (that is, the violation of protected personal interests other than health). On the one hand, “danno biologico” is a category of non-pecuniary damage which arises when someone harms the physical or psychical health of someone else.5 On the other hand, the other non-pecuniary losses arise in case of infringement of personality rights, and, as a consequence, the victim’s standard of living significantly worsens. As regards pecuniary losses and “danno biologico”, the present decision does not state new significant issues. On the contrary, the part of the decision on non-pecuniary losses introduces relevant clarifications concerning ways to protect victims.
37
The present decision of the Supreme Court develops the doctrine of Cass. no. 8827 and 8828/2003 which stated the constitutionally oriented interpretation of art. 2059 Cc (generally concerning non-pecuniary losses).6 According to this doctrine, compensation for non-pecuniary losses should be awarded in cases which involve violations of human rights, even if they do not fall under criminal provisions (as art. 2059 Cc previously stated). Indeed, the Supreme Court starts from the idea that demotion harms the employee’s constitutional right to the development of his personality (art. 2 Const.).
38
In the opinion of the Supreme Court, however, in the present case there would be a legal basis to compensate the non-pecuniary damage caused by the employer. In fact, the Court emphasizes that the employer violated art. 2087 Cc, which protects both the moral and the physical integrity of the employee.
39
This argument is interesting to show the Italian courts’ way of selecting noneconomic interests worthy of being compensated. Non-pecuniary damages are allowed in two cases: on the one hand, if there is a legal provision stating this compensation; on the other hand, if the non-economic interest is protected by the Constitution. This manner of reasoning is confirmed by a more recent decision of the Supreme Court (no. 13546/2006), which has mentioned family, reputation, freedom of speech as examples of human rights worthy of being compensated even if there is no legal provision providing this explicitly. Deci-
40
5
6
See Cass. 12 June 2006, no. 13546, DR 2006, 843, with footnote of G. Ponzanelli, Il danno esistenziale e la Corte di Cassazione. FI I (2003) 2272, with comment of E. Navarretta, Danni non patrimoniali: il dogma infranto e il nuovo diritto vivente.
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sions of trial courts offer other examples of protection of personal interests. For example, the argument based on the constitutional protection of personality rights is also invoked to allow damages for non-pecuniary losses in case of violation of the right to enjoy holidays (as a result of the tour operator’s contractual breach),7 of the right to retire without delay,8 of the right to receive maternity benefits from an employer.9
41
After having argued that there is a legal basis to allow compensation for the violation of the employee’s personality right, the Supreme Court stresses that it is not enough to claim damages. This is the most important section of the cited decision, because it settles a controversial question in the case law.
42
According to one opinion, the simple violation of the personality right would allow the victim to claim compensation (for example, the employer breaches a contractual duty protecting the employee’s moral interest). This is the so-called “danno in re ipsa” viewpoint.10
43
According to another opinion, damages should be awarded only if the consequences of the violation were in effect proved. According to this view, both pecuniary and non-pecuniary losses are “danni conseguenza”. As a consequence, the victim must prove how the tortfeasor has negatively affected his living standards and ordinary life. Although Cass. no. 8827 and 8828/2003 had put forward the “danno conseguenza” doctrine, other subsequent Supreme Court decisions contradicted it.11
44
The present decision supports this second doctrine, and the more recent Cass. no. 13546/2006 confirms it. Even if both decisions uphold the tendency to overcome the limits imposed by art. 2059 Cc in compensating non-pecuniary losses, the present decision seems to state a more restrictive tendency in awarding non-pecuniary damages, since it imposes on the victim the burden of proving the consequences of the violation of his personality rights. However, the Supreme Court allows the victim to prove the non-pecuniary losses he/she suffered also through presumptions. This proof may be easy in some cases, in particular when the harmful event is regarded as dramatic by society and the community in general. Cass. 13546/2006, for example, states that nonpecuniary detriments are implicitly proved when the wrongdoer caused the death of the plaintiff’s relatives. According to the cited decision, the loss of consortium presumably disrupts the life of the relatives, unless the wrongdoer 7
8
9
10
11
See, among the most recent decisions, Giudice di Pace di Casoria, 8 September 2005, DR 2006, 432 with comment of D. Farace, Danno esistenziale da mancata vacanza? Court of Appeal of Genova, 27 April 2005, DR 2006, 557, with comment of E. Palmerini, Il rinvio dell’agognata pensione e il danno non patrimoniale. Tribunale (Trib.) di Lecce, 18 April 2006, DR 2006, 1140, with comment of G. Cassano, La responsabilità dell’ente previdenziale per danno esistenziale. See, for example, Cass. SS. UU. 26 January 2004, no. 1338, 1339, 1340, CG, 2004, 600, with comment of R. Conti, C.e.d.u. e diritto interno: le Sezioni Unite si avvicinano a Strasburgo sull’irragionevole durata dei processi. See fn. 10.
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proves that it has not caused any concrete suffering or does not affect their standard of living. Moreover, the Supreme Court upholds the concept of “danno esistenziale”, which was introduced by some Italian scholars from the beginning of the 1990s,12 and which is applied also by the more recent Cass. 13546/2006. The Supreme Court uses this concept as a general tool to understand the consequences of the violation of the human or personality rights on the victim’s standard of living. “Danno esistenziale” is conceived as the dynamic and concrete profile of the non-pecuniary damage consequent on the infringement of personal interests other than health. It is worth noting that these types of immaterial detriments are conceived as objectively measurable losses, and, according to the Supreme Court, they differ from pain and suffering.
45
2. Cassazione 9 November 2006, no. 23918: Non-Pecuniary Losses13 a) Brief Summary of the Facts
The plaintiff, having undergone an unsuccessful surgical operation, claimed damages for personal injuries.
46
The Tribunale and the Court of Appeal of Rome awarded the victim two types of damages: “danno biologico” (€ 20,393) and pain and suffering (€ 10,000). However, the victim appealed, claiming for a further type of damages, the so-called “danno esistenziale”, that is damages for her reduced possibility to enjoy life as a consequence of the medical malpractice.
47
b) Judgment
The Supreme Court dismisses the appeal, and denies damages for “danno esistenziale”.
48
The Court argues that, according to some seminal decisions of the Cassazione in 2003 (no. 8828, 8827), fundamental human rights have horizontal effects on tort law. Since human rights deserve full private law protection, art. 2059 Cc may not apply in its literary meaning, allowing compensation for non-pecuniary losses only in the cases stated by legal provisions.
49
The Supreme Court argues that, according to the constitutionally oriented interpretation of art. 2059 Cc, the term “stated by legal provisions” would mean that compensation for non-pecuniary losses is allowed in two cases: if the law so provides and if the constitutionally protected interests are injured (in particular, the inviolable rights stated by art. 2 Const.).
50
The Supreme Court judges that the present claim is not based on the injury of a personal interest recognized by the Constitution. The Court criticises the concept of “danno esistenziale” which was upheld, however, by the decision
51
12 13
P. Cendon/P. Ziviz, Il risarcimento del danno esistenziale (2003). DR 2007, 310, with comment of G. Ponzanelli, La lettura costituzionale dell’art. 2059 esclude il danno esistenziale.
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no. 6572/2006. The Cassazione specifies that, since this concept is too vague and indefinite, it cannot be used to select injuries to non-pecuniary interests which are worthy of being compensated. The Court argues that the term “danno esistenziale” would lead to a widening of the scope of non-pecuniary damages and would allow compensation beyond the two cases mentioned above (violation of a legal provision; infringement of a fundamental human right).
52
Even if the Supreme Court contests the concept of “danno esistenziale”, its judgment does not contradict the previous decision no. 6572/2006. In fact, this judgment concerned contractual liability, and, in particular, it was based on the violation of art. 2087 Cc, that is on the breach of the employer’s contractual duty to protect the employee’s physical and moral integrity. The Court emphasizes that in the case judged by the decision no. 6572/2006 it was not relevant whether the injured interest could be qualified as a fundamental human right protected by the Constitution because the wrongdoer violated a contractual duty stated by a legal provision. As a consequence, the concept of “danno esistenziale” did not play a role in selecting the personal interests to be compensated.
53
The Supreme Court confirms the decision made by the Tribunale of Roma, which awarded damages for personal injuries (that is, “danno biologico”). In the opinion of the Supreme Court, there is no doubt that injuries to bodily or mental health must be restored, because they interfere with an interest protected by the Constitution (art. 32 Const). In the present case the tortfeasor caused a bodily impairment to the patient, which gave rise to the claim for “danno biologico”. If the plaintiff had obtained compensation for “danno esistenziale” also, she would have been compensated twice for the same injury. c) Commentary
54
Cass. no. 6572/2006 and Cass. no. 23918/2006 both focus on non-pecuniary losses consequent on the infringement of personality rights. However, the former focuses on the issue of “proof of damage”, and settles this highly disputed question in Italian case law. The latter concerns another issue, that of “protected interests”, and confirms the doctrine stated by decisions no. 8827 and no. 8828/2003. As a consequence, the judgment no. 6572/2006 mentions “danno esistenziale” as a descriptive definition to include every non-pecuniary loss not included in the concept of “danno biologico”, but remains focused on the proof of damage. On the contrary, decision no. 23918 contests the concept of “danno esistenziale” as a way of selecting the interests worthy of protection by tort law rules.
55
Both decisions confirm that “injury to personality rights” is still a highly controversial topic in Italian case law, and state seminal doctrines concerning the damage issue. These judgments have not overcome all conflicts between the pro and con attitudes on non-pecuniary losses, and have led to an even more intense debate among Italian scholars.14 14
See P. Cendon, Danno esistenziale e ossessioni negazioniste, at www.personaedanno.it; P. Cendon, Voci lontane, sempre presenti sul danno esistenziale, FI 2006, 2334 ff.; G. Ponzanelli, La prova del danno non patrimoniale e i conflitti tra danno esistenziale e danno non patrimoniale,
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3. Cassazione 16 November 2006, no. 24404: Tobacco Tort Litigation – Employer’s Contractual Liability for Personal Damage Suffered by the Employee15 a) Brief Summary of the Facts
The plaintiff was employed at Lecce railway station. As a result of the intolerably high levels of smoke at the workplace, the plaintiff suffered serious impairments to his health such as asthma, psychological disorders, tachycardia, cephalea and sense of dizziness. As a consequence, the plaintiff could not work, and, after more than 180 days of absence, the company reduced his salary. The employee brought an action for damages according to art. 2087 Cc (duty of protection of employee’s physical and moral integrity). He assumed that diseases had been provoked by the employer breaching its statutory duty, and that the company should have prohibited the other employees from smoking in the workplace. As a consequence, the plaintiff claimed his entire salary instead of the reduced amount he received and the compensation of personal injuries (“danno biologico”).
56
The Tribunal of Lecce upheld the claim of the plaintiff because the employer had breached its statutory duty of protection of the employee’s physical and moral integrity. It awarded the entire income but rejected the action for damages because of lack of proof.
57
The company appealed. The Court of Appeal of Lecce confirmed the decision of the Tribunal, and, although recognising the employer’s breach of the protection duty, stated that the plaintiff had not proved the impairment of his bodily health.
58
The employer appealed to the Supreme Court.
59
b) Judgment
The Supreme Court rejects the appeal. It argues that the decision of the Court of Appeal is reasonable and correct. The breach of the employer’s contractual duty was proved, while the damages were excluded for procedural reasons. Moreover, the Court of Appeal correctly upheld the claim for the award of the entire income. As a consequence, the appealed decision is confirmed.
60
c) Commentary
This is the second tobacco litigation case in the Italian legal system, a year after the one ruled by the Court of Appeal of Rome in 200516. However, this second case is less significant than the first, since the claim was not brought
15
16
FI 2006, 2337 ff.; G. Ponzanelli, La lettura costituzionale dell’art. 2059 esclude il danno esistenziale, DR 2007, 316 ff. DR 2007, 437, with footnote of F. Malzani, Salubrità dell’ambiente e responsabilità del datore di lavoro: il danno da fumo passivo. See Court of Appeal of Rome, 7 March 2005, CG 2005, 668, with footnote of P.G. Monateri, I danni da fumo: classico e gotico nella responsabilità civile.
61
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against the tobacco enterprise, but against the employer for breach of the contractual duty to ensure a healthy working environment. In the present case, the company broke this duty by omitting to forbid employees from smoking during their activity. Moreover, while the 2005 case concerned tort law litigation, the present decision concerns contractual liability. Finally, while the former judgment entitled the heirs to bring an action for damages although the victim contributed to causing the damage since he decided to smoke, the present one concerns a passive smoking case.
C. LITERATURE 1. U. Breccia/A. Pizzorusso, La responsabilità dello Stato (Plus, 2006)
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The book deals with the topic of State liability, which is analysed according to the public and the private law approach. The authors have collected and edited several articles of young scholars concerning State liability for illegal acts, miscarriages of justice as well as violations of international duties and international crimes. 2. G. Comandé (ed.), Gli strumenti della precauzione: nuovi rischi, assicurazione e responsabilità (Giuffré, 2006)
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The book collects several essays on the “precaution principle”, a crucial issue which involves new questions affecting the role of liability rules on the one hand, and insurance contract law, on the other hand. It provides both a comparative approach and an economic analysis to this subject. In particular, the authors deal with the risks deriving from genetic diseases and environmental damage. In a new light the book also analyses the insurance contract, concluding that its traditional rules do not seem suited to face these new types of risks.
XIV. Latvia Agris Bitāns
A. LEGISLATION 1. Amendments to Civil Code (Grozījumi Civillikumā) (Latvian Herald, Latvijas Vēstnesis) No. 24 (3392, 9 February 2006) On 26 January 2006 the Latvian Parliament adopted amendments to the Civil Code effective from 1 March 2006. Notwithstanding the fact that these amendments were related to merely a few articles, they made a significant impact on Latvian civil legislation and practice. The new wording of art. 16351 resolves all discussion issues between scientists and judges regarding the civil regulation of immaterial values, and heralds a new era of a person’s protection from non-pecuniary loss. It is no secret that Latvia was significantly behind the countries of the developed world in this regard.
1
Previously court practice awarded monetary compensation for non-pecuniary loss only in cases where the law specifically mentioned non-pecuniary loss or immaterial harm as a compensable wrong. Without any logical reasoning, the court interpreted art. 16352 as a ground for the compensation of material
2
1
2
Art. 1635. Every delict, that is, every wrongful act per se, as a result of which harm has been caused (also moral injury), shall give the person who suffered the harm therefrom the right to claim satisfaction from the infringer, insofar as he or she may be held at fault for such act. By moral injury is understood physical or mental suffering which are caused as a result of unlawful acts committed to the non-financial rights or non-financial benefit delicts of the person who suffered the harm. The amount of compensation for moral injury shall be determined by a court at its own discretion, taking into account the seriousness and the consequences of the moral injury. If the unlawful acts referred to in Paragraph two of this section are expressed as criminal offences against a person’s life, health, morals, inviolability of gender, freedom, honour, dignity or against the family, or minors, it is presumed that the person who suffered the harm as a result of such acts has been done moral injury. In other cases moral injury shall be proved by the person who suffered the harm. Note. The term act is used here within the widest meaning, including not only acts, but also the failure to act, that is, inaction. Art. 1635. Every delict, i.e., every wrongful act per se, shall give the person who suffered the harm therefrom the right to claim satisfaction from the infringer, insofar as he or she may be held at fault for such act. Note. The term act is used here within the widest meaning, including not only acts, but also the failure to act, i.e., inaction.
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harm only but not of immaterial harm3. However, the text of the article did not expressly state so. Now art. 1635 provides equal protection for material and non-material interests and there is no longer a discussion in judicial practice with regard to the application of the general principle of liability4 for nonpecuniary loss as well.
3
However the new wording of art. 1635 does not resolve all problems regarding non-pecuniary loss. It should be noted that in Latvia there was previously no legal definition of the concept of non-pecuniary loss. The definition provided by the legislator does not cover all possible manifestations of non-pecuniary loss. Physical or mental suffering is the main or first kind of non-pecuniary loss (moral injury), but limiting the concept to physical or mental suffering alone provides a narrow understanding of non-pecuniary (moral) loss.
4
The non-material results of infringements of a person or his/her non-pecuniary rights (personal rights), values or legal interests can be divided into two large groups:
5
The first includes the non-pecuniary consequences that result from physical harm to the body, that is, personal injury resulting in crippling and disfigurement, physical and psychological pain, suffering, as well as doubt, concern, anxiety, mourning, sadness, emotional shock and other moral suffering; mental trauma, fright (for example, fear of death); changes in the psychological condition of a person in connection with the loss of a relative or spouse, the loss of daily comfort and joy and the like;
6
The second includes the non-pecuniary consequences that result from an infringement of personal rights, for example, the illegal infringement of personal liberty, that is, the right to do whatever is not forbidden by law, by violating a person’s reputation (honour and dignity), infringement of personality rights such as a person’s name, image, brand name, copyright as well as other basic human rights by, for example, allowing discrimination, breaching one’s sexual or gender inviolability, violating privacy and other feelings, rights and interests, as well as other actions that cause a loss of moral and psychological 3
4
See: 26.02.1999 ruling No. 1 of the Plenum of the Republic of Latvia Supreme Court “On the application of Article 1635 of the Civil Code in claims for moral injury” (unpublished), where this ruling explained, that “Article 1635 of the Civil Code foresees recovery of material losses by a plaintiff for persons responsible for the infringement of rights”. Therefore this Article is interpreted narrowly and does not apply to non-pecuniary (moral) loss. It should be noted that there is not a unified terminology in this field, because the two concepts, “the general principle of delict (tort)” and “the general principle of liability” are confused. See: H. Hausmaninger, The Austrian Legal System (1998) 200–268; W. Ebke/M. Finkin, Introduction to German Law (1996) 197–199; N. Horn/H. Kötz/H. Leser, German private and commercial law: an introduction (1982) 146 f. There is a view that general delict is characteristic of France, while the Anglo-Saxon legal system is one of individual delicts or torts. Germany and Switzerland are mentioned as examples of the mixed delict system, that is, systems comprising both the general as well as the individual delict. See: Гражданское и торговое право капиталистических гoсударств, Москва: Международные отношения (1993) 429–439.
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well-being (the so-called “pure” moral injuries that neither have physical consequences nor result in physical pain, for instance, libel or slander)5. Non-pecuniary (moral) loss, in addition to the physical or mental suffering mentioned above, also includes other non-material consequences of the infringement of a person or his non-pecuniary rights (personal rights), values or legal interests.
7
Another unresolved problem is the legal requirement to prove the existence of non-pecuniary loss (moral injury) if the unlawful behaviour does not constitute a criminal offence against a person’s life, health, morals, inviolability of gender, freedom, honour, dignity or against the family, or minors.
8
Non-pecuniary loss is not visible; it cannot be directly expressed in material value, for example, in money. Such damage cannot be proved according to normal procedural standards. It is presumed, that is, it is assumed that a specific infringement can cause a particular person to suffer, for instance, the ordeal of being disfigured. To require that a claimant proves the existence of nonpecuniary loss seems unreasonable. A claimant can motivate that the particular infringement caused physical or mental suffering or other kind of distress.
9
The last but not the least important issue is how will the court evaluate nonpecuniary loss in monetary form? According to art. 5,6 the courts will have the discretionary power to set the amount of damages for non-pecuniary loss, the judge deciding the matter in accordance with a sense of justice and the general principles of law. The future will show which civil law function courts will use in deciding the amount of damages as well as the extent to which life, bodily or mental integrity, human dignity and liberty enjoy protection in Latvia.
10
2. Law on State Compensation to Victims (Likums Par valsts kompensāciju cietušajiem) (Latvian Herald, Latvijas Vēstnesis) No. 87, 6 June 2006 On 18 May 2006 the Latvian Parliament adopted a Law on State Compensation to Victims effective from 20 June 2006. The aim of the law is to guarantee physical (natural) persons, who are declared victims within a criminal procedure, rights to receive compensation for moral harm, physical pain and material damage caused by an intentional offence if the crime was committed against the life and health of person and it caused death or grievous or medium bodily harm, or the offence was a sexual offence (violent intentional crime) (art. 1). 5
6
U. Magnus (ed.), Unification of Tort Law: Damages (2001) 11, 17, 31, 34, 61, 65, 81, 83, 95 f., 98 f., 111 f., 124 f., 128 f., 148 f., 151; W.V.H. Rogers (ed.), Damages for Non-Pecuniary Loss in a Comparative Perspective (2001) 2–5, 16–21, 28–33, 48–51, 54–57, 73–79, 87– 89, 102–106, 109–111, 120–123, 129 f., 138 f., 150 f., 155 f., 168–170, 173 f., 183–189, 192–195, 202, 220–232. Art. 5. Where a matter is required to be decided at the discretion of a court or on the basis of good cause, the judge shall decide the matter in accordance with a sense of justice and the general principles of law.
11
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12
The statute transposes into Latvian law Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims. This Directive determines that crime victims in the European Union should be entitled to fair and appropriate compensation for the injuries they have suffered, regardless of where in the European Community the crime was committed.
13
The Law regulates the procedures and provisions on how the Legal Aid Administration (Juridiskās palīdzības administrācija) pays out state compensation to victims and the amount of state compensation (part 1 art. 2). The request for state compensation and its payment does not prevent victims from seeking compensation according to the Criminal Procedure Law (part 2 art. 2).
14
It should be noted that a crime victim is entitled to receive state compensation in cases when the perpetrator of the crime or his accomplices are unknown or these persons cannot be brought to trial in accordance with the Criminal Procedure Law (part 2 art. 3).
15
The maximum amount of state compensation (LVL 1,200, approx. € 1,700) equals ten times the minimum wage to each victim (part 1 art. 7). It should be noted that this will be in force from 1 January 2008. At present the maximum amount of state compensation (LVL 600 approx. € 850) is equivalent to five times the minimum wage (art. 3 of Transitional Conditions).
16
Depending on the consequences of the criminal offence, state compensation is payable in the following amounts: 100% in cases when the victim dies, 70% if grievous bodily harm is caused or the crime was a sexual offence and 50% if “medium” bodily harm is caused (part 2 art. 7). A victim is entitled to receive 50% of the maximum amount of state compensation when the person is declared as a crime victim according to art. 120, 121, 122, 127, 128 or 129 of Criminal Law7. If the victim received compensation from the accused person or their accomplice, the state has the right to reduce the compensation by the amount already received.
17
Art. 8 states that if the victim would like to receive state compensation, it is necessary to submit an application form, approved by the Cabinet of Ministers. If a decision is pending in the criminal proceedings, the victim should submit information to this effect from the investigators (part 2 art. 8) and if a final decision has been made in the criminal proceedings, the victim should submit the final decision (part 3 art. 8).
18
The victim has the obligation to submit an application form within a one year period after he/she has officially been declared a victim in criminal proceed7
Art. 120 anticipates liability for murder committed in a state of extreme mental agitation, art. 121 – for murder committed exceeding the limits of necessary self-defence, art. 122 – for murder committed violating provisions regarding arrest of a person, art. 127 – for intentional bodily injury inflicted in a state of extreme mental agitation, art. 128 – for intentional bodily injury inflicted exceeding the limits of necessary self-defence and art. 129 – for intentional bodily injury inflicted violating provisions regarding arrest of a person.
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ings (art. 9). The Legal Aid Administration has an obligation to review the request and to arrive at a decision within 30 days (part 1 art. 10). If the person disagrees with the above mentioned decision, he/she is entitled to challenge it by submitting a complaint to the Ministry of Justice, whose decision can be challenged by the Administrative Court (art. 15). State compensation is payable as a single payment (part 1 art. 11). The Legal Aid Administration is entitled to claim from the accused person or their accomplice the amount paid to the victim (regress rights) (art. 16).
19
The statute provides the Legal Aid Administration with an obligation to pass a decision granting state compensation to any resident of an EU Member State if the violent intentional crime was committed on the territory of the Republic of Latvia (art. 17). If the victim is normally resident in Latvia and is injured in a violent intentional crime within the territory of the EU, he/she can submit a request to the institution of the corresponding EU Member State for state compensation through the Legal Aid Administration (art. 18).
20
3. Law on State Civil Servants’ Disciplinary Liability (Valsts civildienesta ierēdņu disciplināratbildības likums) (Latvian Herald, Latvijas Vēstnesis) No. 83, 30 May 2006 On 11 May 2006 the Latvian Parliament adopted a Law on State Civil Servants’ Disciplinary Liability effective from 1 January 2007. The aim of the present statute is to ensure the due, complete, fair and objective investigation of the circumstances relating to disciplinary breach, as well as the preparation of equitable decisions, and clarification and prevention of causes and consequences of disciplinary breach (art. 1). Disciplinary punishment does not exempt a civil servant from civil liability (part 5 art. 3).
21
The statute determines the obligation of the state to compensate pecuniary and non-pecuniary (moral) loss caused to persons if the civil servant is declared disciplinarily liable in accordance with the present law (part 1 art. 9).
22
The ground for liability can be the incorrect attitude to persons while exercising the obligations incumbent on a civil servant, for example, the over-zealous performance of duty concerning persons and the non-observance of an individual’s rights (art. 40), as well as inappropriate and disrespectful behaviour, when the state civil servant does not exercise the obligations arising from his position, but causes substantial material and immaterial harm to individuals (art. 41).
23
B. CASES It should be noted that in 2006 there was an increased number of cases concerning claims for indemnification of non-pecuniary loss.
24
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1. Senate of the Supreme Court, 31 May 2006 No. SKC-03348: NonPecuniary Loss Caused by Unlawful Infringement of Natural Person’s Rights Are Equally Regulated as Pecuniary and Invalidity of Third Group Which Qualifies as Mutilation Can Grant Right to Compensation for Non-Pecuniary Loss a) Brief Summary of the Facts
25
The plaintiff and his wife initiated a civil proceeding against the defendant claiming damages for pecuniary and non-pecuniary losses suffered as the result of a road accident caused by the defendant.
26
The court of first instance rejected the claim. The appeal court partly satisfied the claim, by awarding LVL 5,000 (approx. € 7,140) as compensation for nonpecuniary loss for third group invalidity as a result of the car accident. The appeal court rejected the claim regarding pecuniary loss due to the fact that the plaintiffs received insurance indemnity for their damaged property and for flowers which they were transporting at the time of the accident with intent to sell.
27
The defendant submitted cassation. He argued that the plaintiffs did not refer to art. 2349 of Civil Law, which grants compensation for non-pecuniary loss as result of mutilation, and it is not right to consider third group invalidity as mutilation.
28
The Senate dismissed cassation and upheld the judgment of the second instance court. b) Judgment of the Court
29
The Court stated that the claim was for compensation for non-pecuniary loss for third group invalidity as the result of the car accident and this fact remained unchanged. Moreover, the Court indicated that non-pecuniary loss (personal damage) can be caused by the unlawful infringement of a natural person’s rights.
30
The Court pointed out that the European Court of Justice indicated that non-pecuniary losses are equally important to pecuniary losses by invoking M. Helen Marshall v. Southampton and South-West Hampshire Area Health Authority (C-271/91).
31
In addition, according to the Recommendation of the European Council (Rec (2002) 5), any person who is subjected to violence has the right to compensation for non-pecuniary loss. Third group invalidity can be qualified as mutilation which grants the right to compensation for non-pecuniary loss.
8
Not officially published. See in Latvian Court Decision database: www.lursoft.lv.
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The appeal court deemed the amount of LVL 5,000 (approx. € 7,140) as justified and proportional, being related to an evaluation of the facts of the case, which is not the responsibility of the Senate.
32
c) Commentary
This is one of the first judgments where the Senate has recognised the equality of legal regulation of pecuniary and non-pecuniary loss. Moreover the court declared that the ungrounded breaching of another natural person’s rights can cause non-pecuniary loss (moral damage).
33
Nevertheless the Latvian Supreme Court Senate attempted to escape from responsibility to control the implementation of art. 5 of the Civil Code, which requires the court to use discretion or invoke good causes in determining a case. The Court should specify the principles of law applied in passing the judgment, as well as the grounds which caused the court to hold that such judgment meets the sense of justice. Moreover, the Senate is under an obligation to review and control the implementation of general principles.
34
2. Senate of the Supreme Court, 6 September 2006 No. SKC-4759: Only Actual Damage Is Compensable – Anticipated Damage Can Only Grant Victim a Right to Security a) Brief Summary of the Facts
The plaintiff brought a claim against the defendant for compensation of damage caused to his car during the defendant’s unauthorised use of it. The plaintiff sought LVL 2,668.40 (approx. € 3,700) based on an estimate provided by a mechanic.
35
The first instance court rejected the claim, but the appeal court satisfied the claim.
36
The defendant submitted cassation to the Senate of the Supreme Court. In addition to other arguments, the defendant maintained that the appeal court did not adequately assess the extent of the damage and failed to take art. 177610 of the Civil Code into consideration.
37
The Senate decided to modify the judgment of the appeal court by excluding non-paid VAT.
38
b) Judgment of the Court
The Senate recognized that all four necessary preconditions for civil liability are established. Therefore, the defendant is liable for the damage caused to the plaintiff. 9 10
See in Latvian Supreme Court webpage: http://www.at.gov.lv/index.php?a=20&v=lv. Art. 1776. A victim may not claim compensation if he or she could have, through the exercise of due care, prevented the loss (sec. 1646). An exception to this provision shall be allowed only in a case of malicious infringement of rights.
39
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40
However, the Senate considered it necessary to reduce the amount of damages by excluding the amount of VAT. As far as the plaintiff did not have his car repaired according to art. 177111 of the Civil Code, the amount of unpaid VAT is not compensable.
41
By referring to legal literature, the Senate concluded that a tortfeasor can be released from civil liability only if the main cause of loss is the fault of the victim, which was not the case. c) Commentary
42
The Court still incorrectly interprets art. 1771 of Civil Law regarding anticipated damage. The present judgment highlights the unacceptable interpretation of law regarding damage (loss) which is legally compensable. While art. 1770 of the Civil Code states that a loss (damage) shall be understood to mean any deprivation which can be assessed financially, the courts usually neglect art. 1771, which clearly defines two types of damage – already arisen and anticipated. Only damage which has already arisen is compensable and in the case of anticipated damage, the victim can only be granted a right to security. From this we can conclude that an estimate of the means necessary to repair future damage does not justify a court granting compensation for damage. Also, excluding VAT from the estimated amount as anticipated damage does not seem logical and reasonable.
43
A positive aspect of this case is the conclusion arrived at by the Court which referred to legal literature supporting the view that a tortfeasor can only be released from civil liability if the main cause of the loss was the fault of the victim.
C. LITERATURE 1. K. Torgāns, Saistību tiesības. I daļa (Law of Obligation. Part I) (Tiesu nama aģentūra, Riga 2006)
44
The present book is the first textbook for legal studies in the Law of Obligations after Latvian independency. Professor K. Torgāns provides a general overview of the law of obligations as a part of civil law, including a definition of the law of obligations and three definitions thereof. He observes different legal sources of the law of obligations, including European Community and international conventions.
45
In addition to contracts as the basis for obligations, the author surveys tort and civil liability together with other legal remedies as well. He highlights how important it is to correctly understand such legal institutes as harm, loss, damage and pecuniary and non-pecuniary loss. 11
Art. 1771. Only arisen damage is awardable and anticipated damage can be granted to victim only right to security.
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The author proposes revising the understanding regarding the question of the significance of fault in liability for unlawful acts. As a result, he suggests revising the number of preconditions necessary for the application of civil liability. There is no reason to talk about four preconditions if there are three preconditions: unlawful act (conduct), existence of loss and a causal connection between the two.
46
He stresses the developments of the doctrine of objective liability which resulted in strict liability. He also points out the existence of a presumption of fault in civil law, which means that the tortfeasor is obliged to show justifications for fault’s absence or for a lack of fault.
47
The author proposes not to separate the question of fault from the notion of breach. Moreover, culpability is not a fourth precondition of liability. Culpability is a necessary precondition of breach (unlawful act), but not liability.
48
Definitions and the legal nature of civil liability as the main kind of legal remedy are also examined. The author defines civil liability as the obligation which arises as the result of breach (unlawful act). This obligation expresses an obligation to eliminate or minimise consequences of breach (unlawful act) or compensate pecuniary or non-pecuniary loss, penalty or other legal remedy to the creditor.
49
The author draws attention to other legal remedies, specially addressed to consumers’ protection, and the right to self-defence, which can be used to protect a legal interest.
50
A great part of the book is dedicated to the definition of damage and the aim of compensating damage (damages). Despite the fact that the awarding of damages is one of the most popular legal remedies, there are many unclear and complicated issues regarding the calculation of damages, such as direct and indirect damage or lost profit.
51
The present book as the first legal textbook is important for legal education and practice. Of course due to the limited space it is impossible for the author to provide an overview of all issues, tendencies and problems regarding obligations and civil liability. However this publication would be a good starting point for subsequent legal textbooks and more in-depth studies for students concerning the law of obligations and civil liability in particular.
52
2. I. Šatovs, Vai mirušas personas radiniekiem jāatlīdzina morālais kaitējums (Is Non-Pecuniary Loss of Deceased’s Relatives Compensable?), Jurista vārds (Lawyer’s Word), vol. 7 (410) 2006, 13–16 The author addresses questions related to civil compensation of non-pecuniary loss of relatives of a deceased person. It should be mentioned that the present article was published before new amendments in art. 1635 of the Civil Code
53
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which entered into force on 1 March 2006. By including personal injury in the Civil Code, the legislator aimed to reimburse a person’s physical as well as moral damage as much as possible.
54
At first, the author indicates that the Civil Code directly does not provide the possibility for relatives to receive compensation for immaterial harm (nonpecuniary loss). Art. 1635 is considered a general norm which provides general rights with regard to legal remedies. Special norms related to bodily injury, such as art. 2347–2353, entitle relatives to receive compensation for the deceased’s previous maintenance duty12.
55
The author concludes that it is impossible to use any analogy in the present case, and awarding compensation to a deceased’s relatives would be against the civil law system. As non-pecuniary loss is a personal right which is not transferable to third persons, only the victim him/herself is entitled to claim for compensation. According to the author, if the court decided in favour of such compensation grounded on general principles, that would not be justified because an unpredictability of legal consequences and an unreasonable limitation of a person’s basic rights would be created. In addition, for example for legal entities it can create an unpredictably large amount of damage, and legal entities can become insolvent.
56
This article touches on a very interesting issue – rights to receive compensation for non-pecuniary loss as the result of an infringement of a third person. Indeed the legislator does not directly regulate the present situation. But the author does not separate two different situations – rights to claim for compensation of non-pecuniary loss caused to the deceased and non-pecuniary loss caused to the deceased’s relatives as the result of the death of the deceased. In the first instance the right to claim for such compensation for harm caused to third persons is limited while, in the second instance, the legislator does not limit the right to claim compensation for non-pecuniary loss suffered by an individual as a result of a third person’s death. 3. E. Broks, Zaudējumu atlīdzināšana ceļu satiksmes negadījumos cietušajiem (Compensation of Damage Caused to a Person in a Traffic Accident), Jurista vārds (Lawyer’s Word), vol. 13 (416) 2006, 10–13
57
In the present article the author highlights the problem concerning limitation cases when insurance companies are entitled to reject payment of indemnity for loss caused to a person in a traffic accident. After the European Court of Justice decided in the Candolin case (C-527/03), the present issue became 12
Art. 2351. If the deceased had a duty to maintain someone, such duty shall pass over to the person who is at fault for his or her death. The amount of such compensation shall be determined pursuant to the discretion of a court; the age of the deceased, his or her ability to earn a living at the time of death, and, finally, the needs of the person for whom compensation is to be determined. If the latter has adequate means of livelihood, the duty to provide compensation shall cease.
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more important as art. 3513 of the Law on Compulsory Third Party Liability Insurance for Motor Vehicle Owners gives insurance companies the possibility to reject indemnification in cases when losses arose as the result of gross negligence of the victim. As the Court decided in the Candolin case that national rules, established on the basis of general and abstract criteria, either denied the passenger the right to be compensated by the compulsory motor vehicle insurance or limited such a right in a disproportionate manner, Latvian abstract law also limited the right to receive indemnification in a disproportionate manner.
58
As the Directive has direct implementation against the state and not insurance companies, there is the possibility to use the so-called incidental horizontal effect. Latvian courts must follow the principles created by the Court in both the Candolin and Ruiz Bernaldez cases.
59
The author correctly indicates the problem that the law allows insurance companies to reject payments of indemnification based on a too broad concept of the victim’s gross negligence. After the decision in the Candolin case, Latvian insurance companies and courts should carefully evaluate grounds for rejecting indemnification. A victim has the right to receive compensation for harm suffered as the result of a car accident. It is only in exceptional circumstances that the amount of the victim’s compensation may be limited on the basis of an assessment of the passenger’s contribution to the occurrence of his injuries and in particular cases.
60
13
See Clause 35. Cases when losses are not indemnified. The insurer or the Latvian Motor Insurers’ Bureau will not indemnify: 1) losses which have been caused when using a motor vehicle whose third party liability of the owner is insured, but for which the liability according to Clause 2347 of the Civil Code does not fall in. They include losses which arise due to force majeure, with the suffered person’s intention or as a result of gross negligence; …
XV. Lithuania Herkus Gabartas and Milda Laučienė
A. LEGISLATION 1. Amendments to Laws on Intellectual Property Rights
1
The amendments to the set of laws enforcing the rights of intellectual property were made with the aim of implementing the European Directive on intellectual property rights1 that concerns the measures, procedures and remedies necessary to ensure the enforcement of intellectual property rights. The Law on Trademarks2, the Law on Copyright and Related Rights3, the Law on Patents4 as well as the Law on Design5 were amended and supplemented with provisions relating to the compensation of damage inflicted to intellectual property rights.
2
The amended laws elaborate in detail the compensation of damage in case of infringement of intellectual property rights and provide for a novel form of compensation of pecuniary damage, the so-called “license fee”. Thus, the new provisions establish that, instead of requesting compensation of damage (losses) caused by the infringement of the rights protected under the laws, the persons whose rights were infringed upon may claim fees which would have been due if the infringer had requested authorisation to use the intellectual property right in question, and where the infringer acted intentionally or with negligence – in the amount of up to two such fees.
3
The amendments further state that where the infringer engages in an infringing activity by not knowing (or by having no reasonable grounds to know) of such 1
2
3
4
5
Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, OJ L 157, 30.4.2004, 45–86. Valstybės žinios (Parliamentary Record, VŽ) 2006. Lietuvos Respublikos prekių ženklų įstatymo dešimtojo skirsnio ir 56 straipsnio pakeitimo bei papildymo ir įstatymo priedo papildymo įstatymas, No. 72-2670, 8 June 2006. VŽ 2006. Lietuvos Respublikos autorių teisių ir gretutinių teisių įstatymo straipsnių, VI skyriaus ir priedo pakeitimo ir papildymo įstatymas, No. 116-4400, 12 October 2006. VŽ 2006. Lietuvos Respublikos patentų įstatymo VII skirsnio pakeitimo bei papildymo ir įstatymo priedo papildymo įstatymas, No. 72-2668, 8 June 2006. VŽ 2006. Lietuvos Respublikos dizaino įstatymo dešimtojo skirsnio pakeitimo bei papildymo ir įstatymo priedo papildymo įstatymas, No. 72-2669, 8 June 2006.
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infringement, then, the court may, at the request of the owner of the copyright or trademark, order the recovery of profits. The profits of the infringer shall be considered to be all that the infringer saved and (or) received by infringing the rights protected under the law. The profits of the infringer shall be determined and recovered regardless of the fact whether or not the owner of the rights himself would have gained the similar profits. The new provisions eliminate disparities as regards the means of enforcing intellectual property rights. It may be argued that, due to the difficulties in calculating the damages for the infringement of intellectual property rights, the aim of the amendments of the laws was not to introduce an obligation to provide for punitive damages but to allow for compensation based on an objective criterion. However, as it is discussed infra no. 30–32 of this report, a possibility to increase the compensation amount (beyond the actual damage suffered), which depends on the gravity of the infringer’s fault, has some punitive aspect and therefore may be questionably based on the general principles of Lithuanian tort law which do not recognize the concept of “punitive” damages. This dilemma is expected to be solved by the Lithuanian Constitutional Court, where the case on this legal issue is pending6.
4
B. CASES 1. Lithuanian Supreme Court, 12 June 2006, No. 3K-3-394/2006: Determination of Non-Pecuniary Damages; Damage Inflicted by a Violent Criminal Act a) Brief Summary of the Facts
The plaintiff – a night guard at a high school – was attacked by a group of teenage burglars, who broke into the building to steal school property. The plaintiff was attacked and seriously injured: his head and other parts of his body were beaten, the skin scratched, various bones and the skull broken. The burglars tied up their victim and fled. The plaintiff was found in the morning and taken to hospital, where he was operated on several times. As a result of the injury, the plaintiff was partially disabled. The defendants were later found, successfully prosecuted and convicted of violent crimes.
5
The plaintiff sued the defendants for LTL 40,000 (€ 11,600) as non-pecuniary damages. The plaintiff argued that during the attack he suffered severe pain, various parts of his body still hurt, the after-effects of the injury were expected to be of an enduring nature and irreversible. The plaintiff would have to undergo several more operations; he suffered from depression and fear and could no longer sleep without taking sleeping-pills. Moreover, the plaintiff experienced various inconvenience and stress as he was questioned by the police during the criminal proceedings.
6
6
See fn. 8.
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7
The court of first instance approved the claim in part and awarded the plaintiff LTL 15,000 (€ 4,350) in non-pecuniary damages. The court took into consideration the criteria of determination of non-pecuniary damages as they are enumerated in art. 6.250 par. 2 of the Civil Code of the Republic of Lithuania, namely the consequences of the physical damage, the gravity of the fault of the tortfeasor, his financial status, the amount of pecuniary damage sustained by the victim as well as the criteria of good faith, justice and reasonableness.
8
The court stressed that the plaintiff was a retired person and he had not became totally disabled due to this crime; restrictions to his future employment restraints were minor. The court also took into account the fact that the juvenile offenders were not employed, their and their parents’ financial state was poor and thus a high award of non-pecuniary damages would perhaps have produced harsh consequences for the defendants.
9
The District Court further reduced the award to LTL 10,000 (€ 2,900) noting that the defendants had already paid the plaintiff a voluntary compensation of LTL 6,000, which the Court found to be a compensation of both pecuniary and non-pecuniary damage. b) Judgment of the Court
10
The Supreme Court reversed the decisions of the lower courts and awarded the plaintiff the original sum of LTL 40,000 (€ 11,600) as non-pecuniary damages.
11
Firstly, the Court cited art. 6.250 par. 2 of the Civil Code of the Republic of Lithuania, which states that non-pecuniary damage shall be compensated in all cases where it is incurred due to crime, health impairment or deprivation of life (whereas the general rule in Lithuanian tort law is that non-pecuniary damage is to be compensated only in cases expressly provided for by law).
12
The Court interpreted the latter norm as an indication of the higher significance which the legislator attaches to the legal protection of victims of violent crimes and their health. According to the Court, the more important the value protected by law, the stronger must be the legal remedies for its protection. Therefore the non-pecuniary damages are to be determined in relation to the value infringed upon by the wrongful act, and the specific way in which the infringement was carried out.
13
The Court drew special attention to the fragile nature of human health and stressed that the loss of it may not always be restored. Therefore when as a result of a wrongful act the victim is seriously injured, suffers from severe pain and is reasonably concerned about his state of health in the future, when the victim is forced to experience numerous interventions (operations, special rehabilitation procedures, etc.), the extent of the award of non-pecuniary damages may in some cases depend solely on the fact that the health of the victim, as the value of utmost importance, was impaired.
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Moreover, another common criterion for the determination of non-pecuniary damages is the gravity of the fault of the tortfeasor. Intentional violent acts are considered to be among the most dangerous acts to society. Consequently, the mere fact that the bodily injuries and moral sufferings of the victim were caused by a violent crime enables the Court to award relatively higher nonpecuniary damages.
14
Therefore, if the injury to a plaintiff’s health is caused by an intentional violent act, the criterion of the gravity of the defendant’s fault as well as the legal value infringed are essential and relatively more important for the determination of non-pecuniary damages than other criteria enumerated in art. 6.250 par. 2 of the Civil Code, namely the financial status of the defendant or other criteria.
15
c) Commentary
Under art. 6.250 par. 1 of the Civil Code of the Republic of Lithuania, “nonpecuniary damage shall be deemed to be a person’s suffering, emotional experiences, inconveniences, mental shock, emotional depression, humiliation, deterioration of reputation, diminution of possibilities to associate with others, etc., evaluated by a court in terms of money”. The criteria for determination of the exact size of the award are enumerated in art. 6.250 par. 2: “The court in assessing the amount of non-pecuniary damages shall take into consideration the consequences of such damage sustained, the gravity of the fault of the person by whom the damage is caused, his financial status, the amount of pecuniary damage sustained by the aggrieved person, also any other circumstances of importance for the case, likewise the criteria of good faith, justice and reasonableness”. No further guidelines for the determination of non-pecuniary damages are provided in the Lithuanian legislation.
16
The Lithuanian courts traditionally are reluctant to award high non-pecuniary damages: the highest award so far has been € 145,000, which was adjudged to newborn twin babies, whose skin was negligently burnt in the public hospital shortly after their birth, and to their parents7. Moreover, as it is demonstrated by this case, there is a tendency in tort cases for the courts to reduce the sum of non-pecuniary damages claimed by the plaintiff (for instance, in the aforesaid case the original claim was € 290,000).
17
This case serves a rare example where the victim was awarded the sum he had originally claimed as non-pecuniary damages. In this case the Lithuanian Supreme Court made an important and interesting attempt to provide some guidance as to the relative importance of the various criteria for the determination of non-pecuniary damages as they are enumerated in art. 6.250 par. 2 of the Civil Code.
18
7
Lithuanian Supreme Court, 18 April 2005, No. 3K-7-255/2005. For further comments of the case see: H. Gabartas/M. Laučienė, Lithuanian Supreme Court, 18 April 2005, No. 3K-7-255/2005: Medical Negligence; Determination of Non-Pecuniary Damages, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2005 (2006) 402 ff.
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19
The lack of more specific guidelines for the determination of the amount of non-pecuniary damages may cause various difficulties in appealing against the awards of the lower courts. Therefore, as long as a court considers all the criteria enumerated in art. 6.250 par. 2 of the Civil Code, the award of non-pecuniary damages becomes hardly questionable. As it is well demonstrated by this case, the award could easily be reduced due to the fact that the defendant is insolvent (this criterion is still quite “popular” in the Lithuanian case law), despite the gravity of his fault or huge losses of the victim. Such a dangerous tendency brings forward a problematic issue whether tort law in such cases can still perform its general preventive function. To put the question differently, is it appropriate in society to give a certain advantage to insolvent tortfeasors (or even criminals) and by doing so to “penalize” their victims?
20
In this case the Supreme Court stressed the relative importance of human health as a specific value, as well as the apparent need to condemn and prevent violent acts in society. This value-laden approach of the Court seems rather plausible. Moreover, it provides more detailed guidance on the determination of non-pecuniary damages, as well as a more firm basis to challenge the unjust awards for victims who feel their emotional pain and suffering was not duly evaluated. 2. Lithuanian Supreme Court, 2 June 2006, No. 3K-3-270/2006: Copyright Infringements, Punitive Damages a) Brief Summary of the Facts
21
Four large foreign companies – Microsoft Corporation, Adobe Systems Incorporated, Symantec Corporation and Autodesk Incorporated – jointly sued the defendant company and company’s executive director for LTL 200,868 (€ 58,222) compensation under the Law on Copyright and Related Rights. The plaintiffs argued that the defendants infringed their copyright by installing and using for commercial purposes their software without acquiring a proper license. The infringements were found by the Tax Police during the inspection at the defendant company and an administrative fine was imposed upon the defendant company’s executive director who, as it appeared, had personally installed the software. At the time of the proceedings the defendant company was being liquidated and was practically insolvent.
22
The court of first instance approved the claim in part and awarded the respective plaintiffs a total sum of LTL 160,000 from the defendant company. The court dismissed the claim against the other defendant (executive director). The court established that the defendant company used the copyright protected software without a license of the owner of the copyright thus infringing the Law on Copyright and Related Rights. It was also held that the executive director could not be held liable, because she acted as an organ of the company; the company law applicable at the material time did not provide for joint liability of a company and its organs. Thus, the court refused to establish joint and solidary liability of both defendants. Nevertheless, according to the court, the defendant company could seek recourse against the executive director for
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her illicit acts. The court awarded compensation which was equal to the selling price of the software which the defendant company was using if it had been legally purchased. The Court of Appeal upheld the decision of the lower court. The plaintiffs challenged the refusal to establish the joint and solidary liability of the executive director of the company before the Lithuanian Supreme Court.
23
b) Judgment of the Court
The Court reversed the decisions of the lower courts. After confirming the findings of the lower courts concerning the breach of copyright, the Court turned to the question of the joint and solidary liability of both defendants.
24
According to the Court, the essential principle of tort law is that damage must be compensated by a responsible person. In this case the second defendant was not only the director of the company but also a sole shareholder since the very incorporation of the company. The director personally installed the software and thus inflicted damage on the plaintiffs. The director of the company is an ex lege representative of the company, she is not allowed to use her powers for the benefit of herself or third parties nor can she cause damage to third parties. The director of the company is bound by the common principles of good faith, justice and reasonableness. The damage caused to the third parties triggers the liability of the legal person or the director personally. To hold the director of the limited liability company liable, the common elements of tort liability must be established. Firstly, it is necessary, that the acts of the director were contradictory to law or interests of the company or a third party. Moreover, it is necessary to establish the existence of material damage.
25
As the Court pointed out, the liability of the members of the governing bodies or shareholders of a limited liability company aims at ensuring that they could not escape liability in those exceptional cases when their dishonest and illicit acts cause the insolvency of the company. Such a dishonest act means that the fault of a shareholder or the member of a corporate body is established.
26
Taking into account the aforesaid facts, and by broadly interpreting the old Civil Code of 1964, which was still in force at the time in question, the Court found the second defendant solidarily liable to the plaintiffs.
27
Moreover, the Court decided that there is a need to reduce the compensation awarded to the plaintiffs by 70%. Since the defendant company is insolvent and being liquidated, damages would actually be paid by the second defendant – the executive director of the company. Moreover, the plaintiffs are famous and economically strong international companies, thus the reduced compensation would not impair their financial position. On the contrary, the original amount of compensation would strongly impair the financial status of the second defendant – a natural person. Therefore the Court, stressing the need to balance the financial position of the parties, decided to reduce the original compensation.
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c) Commentary
29
Apart from the question of joint and solidary liability of the governing body of a company, another important issue of this case is the compensation institute, which is a common trait of the Lithuanian law of intellectual property.
30
Art. 67 par. 3 of the Law on Copyright and Related Rights, which was in force at the time, provided for an alternative remedy to compensation of damage: “As an alternative to damages, the owner of copyright has a right to demand compensation, which is equal to the price of sale of subject of copyright, increased by 200%, and in case of the wrongdoers intentional fault – 300%”. As one can see from the wording of the latter article, it provides a rather objective criterion for the determination of the size of compensation: the compensation is calculated as the market price of the specific object, the copyright of which was infringed, multiplied two or three times depending on the form of the defendant’s fault. In case of copyright infringement, this may certainly be a rather plausible way to overcome the difficulties for the plaintiff in providing evidence as to the actual damage suffered. The copyright is especially hard to evaluate in money objectively, therefore the case of copyright infringements are somewhat similar to the problem of determination of non-pecuniary damages. Thus, the legal institute of compensation, the size of which is directly related to the sale price of the object protected by copyright, may surely provide an effective solution.
31
On the other hand, as a matter of principle, the compensation institute looks like a backdoor through which punitive damages could easily crawl into the system. One of the fundamental principles of Lithuanian tort law is the “compensation in full” principle: the damage incurred must be compensated in full, except when there is a legal basis to reduce the damages due to contributory fault, etc. The compensation under the Law on Copyright and Related Rights 1999 is not exactly about compensation in full at all: it is obvious that the plaintiff could not have incurred damage (in the classical sense) equal to the market value of the certain commodity protected by the copyright, increased by 200% or 300%. Thus, the compensation is clearly of a punitive nature and could arguably be treated as “punitive” damages, which have not been recognized by Lithuanian tort law so far. Consequently, its conformity with the general principles of tort law may be questionable.
32
It is worth noting that this issue has recently been brought before the Lithuanian Constitutional Court. In June 2006 the District Court of Vilnius halted the proceedings between the major Lithuanian breweries concerning the infringement of trademarks and referred the question of constitutionality of art. 51 par. 3 of the Law on Trademarks (which, at the material time, was identical to the aforesaid art. 67 par. 3 of the Law on Copyright and Related Rights 1999) to the Constitutional Court8. The case is now pending and the Constitutional Court’s decision will undoubtedly shed some light upon the matter. 8
Case No. 33/06, application No. 1B-34/2006 of 28 July 2006. The text of the application is available at http://www.lrkt.lt/Prasymai.html.
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This judgment allows one to make certain conclusions about the attitude of the Court towards “punitive” damages in the form of compensation under the Law on Copyright and Related Rights 1999. The Court decided to reduce the compensation awarded to the plaintiffs by the lower courts by 70%. The compensation was reduced despite the fact that the law expressly provided neither for the opportunity to reduce the compensation, nor for the criteria to determine the basis for such reduction. Moreover, the general rule is that the Court is not allowed to rule to the disadvantage of the plaintiff, unless the defendant also appealed (which was not the case here). The main argument on which the Court based the reduction of the compensation (the great financial wealth of the plaintiffs) is at least questionable. Therefore the current attitude of the Court towards “punitive” damages in intellectual property law may seem to be rather sceptical.
33
3. Lithuanian Supreme Court, 25 May 2006, No. 3K-7-266/2006: Liability of Individual Members of Limited Liability Corporate Bodies a) Brief Summary of the Facts
A plaintiff sued two defendants for damages. The first defendant was a former member of the board and the minority shareholder of the currently bankrupt investment company. The second defendant was an executive director, member of the board and the minority shareholder of the same company. In 1995 the plaintiff entered into an agreement with the latter company and lent the company LTL 3,000 (€ 870) at an interest rate of 60% per annum. The company soon became insolvent and subsequently was wound up. The defendants were later successfully prosecuted for embezzlement of the company’s assets and fraud. The plaintiff argued that the defendants are liable under art. 2.50 par. 3 of the Civil Code of the Republic of Lithuania which reads as follows: “where a legal person fails to perform his obligations due to acts in bad faith of a member of the legal person, the member of a legal person shall, in a subsidiary manner, be liable for the obligations of a legal person by his property”.
34
The court of first instance refused the claim. The court stressed that the new Civil Code entered into force only on 1 July 2001, whereas the criminal acts of the defendants took place much earlier. Even though the defendants’ acts indeed caused the insolvency of the company, the debt could have been recovered only from the existing assets of the limited liability company during the bankruptcy proceedings.
35
The District Court upheld the decision of the lower court and stressed that corporate laws that were valid at the material time only provided for the liability of a governing corporate body against the company itself (or company’s shareholders), whereas its liability against third persons (including the creditors of the company, as was the case here) was not possible.
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b) Judgment of the Court
37
The Lithuanian Supreme Court reversed the decisions of the lower courts and remitted the case to the court of first instance for further deliberation.
38
The Court disagreed with the findings of the lower courts regarding the liability of the governing bodies of the corporation. According to the Court, in order to establish liability of governing bodies of the limited liability company, the common elements of tort liability should be established. As far as wrongful acts are concerned, the behaviour of the members of the company’s governing bodies can be measured against the normative requirements of company laws, the Civil Code as well as the requirements of good commercial practice.
39
The Court elaborated further on the possible criteria of determining the liability of members of the board and executive director. In this case the existence of the defendants’ fault and causation were established because the defendants had already been found guilty of embezzlement and fraud. As a result of the criminal acts, the plaintiff incurred damage – he could not retrieve his deposit and interest from the insolvent company.
40
The Court has concluded that in a case when a member of a corporate body is found guilty in criminal proceedings and his criminal acts cause the insolvency of the corporation, the defendant must be held jointly and severally liable for the company’s debts. Thus, the liability of a governing corporate body may arise not only against the company itself, but also against the third persons (including the plaintiff). c) Commentary
41
This case, decided by the extended panel of seven judges (instead of three which is usually the case), comes from the notorious bank crisis of 1994–1995 when, due to the loopholes of legal regulation and lack of supervision from public bodies, many commercial banks and investment companies collapsed. These banks and companies collected deposits from investors by offering high interest rates (such as 60% percent per annum in this case). In most cases the collected deposits were later embezzled by the owners or executives of the companies.
42
This case provides a good example of extended application of “lifting of the corporate veil” doctrine to the liability of governing bodies of a limited liability company. According to this doctrine, the limited liability of the company does not preclude the liability of its members provided that the corporation was misused for the fraudulent purposes. In this case the dishonest acts of the member of the corporate body caused the insolvency of the limited company.
43
Art. 2.50 par. 3 of the Civil Code of the Republic of Lithuania provides for liability of the member (i.e. a shareholder) of the legal person due to whose acts in bad faith the legal person cannot fulfill its obligations. The most prominent case in which the latter norm was applied in the Supreme Court was case No.
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3K-3-124/2004 of 18 February 20049. However, the case in question is somewhat different from the 2004 case as the illicit acts of the defendants in the current case took place long before the new Civil Code entered into force, thus art. 2.50 par. 3 was not applicable. Furthermore, and more importantly, this case concerns the liability of bodies of the corporation rather than shareholders because the defendants only had an insignificant number of shares of the company (the first and the second defendants had only 6.3% and 0.9% of the share capital respectively). The Court felt that the members of the limited liability company had to be held liable under the general principles of tort law provided that the conditions of tort liability were established. In this case the defendants were successfully prosecuted and convicted. Since the standard of proof in criminal proceedings is considerably higher, the Court ruled that the illicit acts, the fault of the defendants and causation had been established in this case.
44
The latest development of the Court’s jurisprudence suggests that the principle of this case sets a valid precedent and that it may also be applied to the set of circumstances that arose after 1 July 2001 (i.e., when the new Civil Code entered into force). Thus, in the later case No. 3K-3-298/2006 of 12 July 2006 the Court held that the liability of limited liability corporate body members may also be established for damage inflicted to the State Revenue Service by a criminal tax fraud that was committed after 1 July 2001. It may therefore be argued that a further development of this principle potentially can erase any differences between the liability of corporate governing bodies and of a company itself when the corporate bodies try to shield their personal misconduct by a corporate veil.
45
4. Lithuanian Supreme Court, 15 December 2006, No. 3K-3-589/2006: Strict Liability for Losses Incurred Due to the Application of Intermediary Measures a) Brief Summary of the Facts
The defendant company UAB “Lex System” (hereinafter – “Lex System”) filed an application for a court order for payment against the plaintiff company UAB “Militzer” (hereinafter – “Militzer”) claiming for repayment of a debt, equal to LTL 395,261 (€ 114,568). The court ordered the plaintiff to pay the above-mentioned sum and imposed intermediary measures (it arrested the plaintiff’s financial assets and some of its other property), but the plaintiff objected to the order for payment and the order was reversed. The defendant company, under the Code of Civil Procedure, subsequently filed a lawsuit again for the repayment of the whole sum of LTL 395,261 (€ 114,568) despite the fact that the plaintiff company had already paid LTL 200,000. Later the defendant withdrew his claim. 9
For further comments of the case see: H. Gabartas/M. Laučienė, Lithuanian Supreme Court, 18 February 2004, No. 3K-3-124/2004: Shareholder’s Liability for the Obligations of a Legal Entity, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2004 (2005) 415 f.
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47
After some time, the plaintiff (“Militzer”), being the defendant in the aforementioned case, sued the defendant company (“Lex System”) for compensation for the damage incurred by the plaintiff due to the allegedly unfounded claim of the defendant and intermediary measures, imposed on application of the defendant. The plaintiff sought reimbursement of legal expenses as well as the default interest on the sum which was arrested. The claim was based on art. 147 par. 3 of the Code of Civil Procedure, which reads as follows: “when the judgment of the court by which the claim of the plaintiff was refused comes into force, the defendant has a right to demand to make good the damage incurred due to the application of intermediary measures on the request of the plaintiff”.
48
The court of first instance refused the claim. The court, inter alia, argued that the plaintiff failed to prove that the defendant’s claim was unfounded and, therefore, there was no legal basis to find the defendant responsible for the dishonest abuse of procedural rights.
49
The Court of Appeal upheld the decision of the lower court. The court disagreed with the plaintiff’s argument, that art. 147 par. 3 of the Code of Civil Procedure provided for strict liability. As the court noted, the plaintiff quoted both art. 147 and 95 of the Code of Civil Procedure and these legal norms are only applicable in case of the dishonest abuse of procedural rights. The withdrawal of the claim was not per se sufficient to prove such an abuse – the plaintiff had to prove the abuse, which, according to the court, it failed to do. b) Judgment of the Court
50
The Lithuanian Supreme Court (hereinafter – the Court) reversed the decisions of the lower courts. The Court ruled that there were two conditions for the application of art. 147 par. 3 of the Code of Civil Procedure, namely the judgment of the court by which the claim of the plaintiff was refused and damage incurred by the debtor due to the intermediary measures. The judgment of the court by which the claim was refused has a prejudicial force and means that both the claim was unfounded and that the intermediary measures were unjustified.
51
Moreover, the Court stressed that the plaintiff (“Militzer”) did not need to prove the abuse of the procedural rights or any dishonest intentions by the defendant “Lex System”.
52
On the other hand, the ruling of the Court stated that the withdrawal of the claim by the defendant (“Lex System”) does not have prejudicial force and therefore may not serve as a proof for the dishonest abuse of procedural rights by the defendant. Nevertheless, when the plaintiff (“Militzer”) proves that the claim was unfounded and thus would have been refused anyway there is a sound basis to hold the defendant liable under art. 147 par. 3 of the Code of Civil Procedure.
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c) Commentary
This case concerns the liability for losses incurred by the plaintiff (“Militzer”) due to the application of intermediary measures, such as the arrest of the plaintiff’s assets. Art. 147 par. 3 of the Code of Civil Procedure provides for the defendant’s (“Lex System”) liability for losses which the plaintiff incurs due to the application of intermediary measures on the request of the plaintiff. Moreover, art. 95 par. 1 of the Code of Civil Procedure provides for liability for abuse of procedural rights.
53
In this case the Supreme Court made a rather clear distinction between the latter two legal norms. For the successful application of art. 95 it was necessary to prove the dishonest abuse of procedural rights by the defendant (“Lex System”) as well as the losses incurred by the plaintiff (“Militzer”) as a result of such abuse. On the other hand, under art. 147 the plaintiff was essentially required to prove only the fact that he incurred losses due to the application of intermediary measures. Therefore art. 147 par. 3 of the Code of Civil Procedure, as it was interpreted by the Supreme Court, provides for strict liability of the defendant irrespective of his true intentions, when his claim is refused by the court. In such a case the judgment of the court had a prejudicial force and meant that the illicit acts of the defendant were established.
54
Moreover, the Supreme Court felt it was necessary to allow application of art. 147 par. 3 when the claim was withdrawn by the defendant (“Lex System”) as long as the plaintiff (“Militzer”) could prove that the claim would have been refused anyway.
55
This interpretation of the Supreme Court allegedly has twofold implications. Firstly and most importantly, a person who incurred losses due to unjustified applications of intermediary measures has clearly acquired an important legal remedy to defend his rights and legal interests. On the other hand, it can be argued that the threat of liability may prevent plaintiffs from requesting intermediary measures in cases where the plaintiff is honestly defending his existing rights. However, a clear outcome of this case is still to be established by a further Court’s jurisprudence.
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C. LITERATURE 1. Simona Selelionytė, Neteisėtumas kaip valstybės deliktinės atsakomybės sąlyga (Unlawfulness as a Prerequisite of Tort Liability of the State), Jurisprudencija, No. 1, 2006, 102–112 The article analyses the concept of unlawfulness as a prerequisite of tort liability of the state. The problem is approached by studying different aspects of unlawfulness. The author examines whether the duty of the state to compensate damage arises in every case when private persons suffer damage. The rule of law acknowledges that every public institution and official should exercise his competence with the maximum of care and attentiveness. Consequently,
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what criteria should be used to draw the line between the existence of the duty to compensate damage and between the non-existence of such a duty? Furthermore, is the meaning of unlawfulness equally interpreted in respect to tort liability of the state and other branches of law?
58
The article focuses on the analysis of legal civil theory and judicial practice of several foreign countries, namely England, the United States, Germany and France, basically due to the lack of Lithuanian jurisprudence and scarcity of legal literature examining the Lithuanian laws on tort liability of the state. In addition the article presents the legal theory of “legisprudence” developed by the Belgian scientist Luc J. Wintgens with the aim of revealing the way the theory analyses questions of lawfulness and unlawfulness of the acts of the modern state.
59
The article discloses the main problems found in the judicial practice of the Lithuanian courts by examining the issues of unlawfulness of acts performed by public institutions and officials and presents solutions to these legal problems. 2. Algis Norkūnas, Vartotojo teisių dėl žalos, padarytos nekokybiškais produktais, gynimo pokyčiai Lietuvai įstojus į Europos Sąjungą (Protection of the Consumer Right to Compensation of Damage Caused by Defective Products), Jurisprudencija, No. 2, 2006, 73–79
60
By employing the analytical and comparative methods, the author examines the provisions of the existing legislation and demonstrates its compliance with legal acts of the European Union. Non-compliance with the provisions of the EU Directive10 influenced the amendment of the provisions of the Lithuanian Civil Code11 regulating the definition of persons liable for damage, the concept of damage, and the grounds for exempting the producer from civil liability.
61
The article discusses whether those amendments were a necessity or an expression of the Lithuanian legislator’s choice. In addition, the article examines the differences in the grounds for the exemption of civil liability for the compensation of damage caused by defective products and defective services.
62
Compensation for damage caused by defective products was identified as a special tort only in the Lithuanian Civil Code of 2000. Until then, compensation for damage caused by defective products or services had been provided for consumers on common grounds. The entry of Lithuania into the European Union created the necessity to unify business conditions and the level of consumer protection. The article shows the conditions for the application of the tort-related provisions of the Civil Code, their differences from the provisions 10
11
Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, OJ L 210, 7.8.1985, 29–33. VŽ 2004, No. 72-2495. Law on the amendment and supplement of the Civil Code of the Republic of Lithuania.
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determined by the Directives and the problems of implementation. The article discusses the content of the changes. At the same time, the transformation in the business environment and the protection of consumer rights caused by the change are also revealed. The article will prove useful for the interpretation of rules on civil liability; it also provides a better understanding of the change in the legal business environment caused by the European Union membership, as well as other possibilities for the protection of consumer rights.
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3. Solveiga Cirtautienė, Neturtinės žalos atlyginimo tretiesiems asmenims galimybės sveikatos sužalojimo ir gyvybės atėmimo atveju (Compensation of Non-Pecuniary Damage to Third Persons in Case of Injury to Health or Deprivation of Life), Justitia, No. 2–3, 2006 The author aims to define the objectives of compensation for non-pecuniary damage and to justify the necessity to ensure the effective right to fair compensation of non-pecuniary damage to third persons in case of health impairment or deprivation of life of one’s close relatives.
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The Lithuanian jurisprudence of recent years has vividly revealed the growing tendency of third persons to claim non-pecuniary damages in case of health impairment or deprivation of life of their close relatives. Having regard to the fact that the Supreme Court failed to be consistent with its decisions in relation to determining the amount of non-pecuniary damages,12 the author argues that there is a need to define the model for compensation of non-pecuniary damage to third persons in Lithuania.
65
Taking into consideration the process of European tort law unification and the increasing public interest in exercising one’s right to claim non-pecuniary damages in case of health impairment or deprivation of life of one’s close relatives, it becomes evident that Lithuania requires legal clarity in relation to defining the right to compensation of non-pecuniary damage and determination of the amount of non-pecuniary damages.
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4. Andrius Verikas, Darbuotojo sveikatai padarytos žalos atlyginimo sistema (The System of Compensation of Damage to Health of the Employee), Jurisprudencija, No. 11, 2006, 63–69 The article analyses various methods of compensation of damage and proposes possible solutions to such problems. Compensation of damage inflicted to health is not only of a compensational nature, but also an important safeguard of the social rights of the injured. The system of compensation of damage to the health of the employee requires that different methods of compensation for damage be applied subsidiarily. Damage to health of the employee may be compensated by the public social insurance against occupational accidents and 12
See fn. 7.
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occupational diseases. However, social insurance fails to cover all of the damage inflicted to the employee, as it only reimburses lost earnings.
68
The question of compensation of damage must be dealt with according to the provisions of public law – by means of social insurance of occupational accidents and occupational diseases, and only then could the part of the non-reimbursed damage be compensated according to the rules of the material liability of the employer or the rules of civil liability.
69
By way of systematic analysis a reasoned conclusion is made that the legal provisions, enacted in different legal acts, and providing for diverse ways of compensation of damage to health of the employee, constitute a system of compensation of such damage. 5. Marta Gavrilovienė, Nusikalstama veika padarytos žalos atlyginimas taikant su laisvės atėmimu nesusijusias bausmes (Damage Compensation in the Context of Alternative Punishment), Jurisprudencija, No. 6, 2006, 92–101
70
The article presents an analysis of the problem of the compensation of damage caused by criminal acts. According to the recommendations of the European Commission, it is necessary to state the origin of the damage, determine the amount of damage and establish the priority of the damage compensation above other kinds of punishment. The article also proposes an analysis of applying the law in certain cases, concerning the suspended sentence and conditions of compensation of damage. 6. Indrė Žvaigždinienė, Materialinės atsakomybės už žalą aplinkai samprata (The Concept of the Liability for Environmental Damage), Teisė, No. 59, 2006
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The article is dedicated to the analysis of the concept of the liability for environmental damage. Several main problems are dealt with in the article: the definition of liability for environmental damage, the basis and conditions for the application of liability, its main principles, subject and forms of execution.
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One of the main features of environmental liability is its compensational character. While criminal, administrative or disciplinary responsibility are dedicated to punishing the violator of law, the purpose of environmental liability is compensation of damage caused to the environment. Earlier attention was paid only to the retrospective aspect of environmental liability (i.e. to the coverage of damage which has already occurred), but nowadays the long range attitude to environmental liability is becoming more and more popular. The latter emphasizes the importance of applying preventive measures in order to avoid environmental damage. Therefore in order to formulate a precise definition of environmental liability, both mentioned aspects should be taken into consideration.
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According to its character, liability for environmental damage is closely linked with civil liability for violations of environmental laws. These two types of liability share similar principles, common features of the subject of the liability, but they also differ because they are applied differently depending on the type of damage. When traditional damage (i.e. damage to individuals, their property or other interests) is caused by activities dangerous to the environment, civil liability for the violations of environmental laws must be applied and when the damage is caused to the environment as a public value, the liability for environmental damage will be applied. Regarding the fact that the same activity can cause both traditional and environmental damage, a unanimous liability regime should be created in order to ensure that all damage caused will be covered.
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7. Mindaugas Kiškis/Rimantas Petrauskas, Intelektinės nuosavybės elektroninėje erdvėje pažeidimų ypatumai (Peculiarities of Intellectual Property Infringement in Cyberspace), Jurisprudencija, No. 5, 2006, 29–36 The article provides for the notion of intellectual property infringement in cyberspace, analyses principal forms and peculiarities thereof. The authors emphasise differences between traditional infringement of intellectual property rights as well as infringement of intellectual property in cyberspace.
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The goal of the article is to identify features of the intellectual property infringement in cyberspace and to analyse principal features which shall be taken into account for the purpose of cyberspace legislation. In addition the authors review and evaluate current legislation of intellectual property infringement and compensation of damage for infringement of intellectual property rights.
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8. Elvina Morkytė, Keitimasis muzikos rinkmenomis P2P tinkluose: intelektinės nuosavybės aspektai (P2P File Sharing: Copyright Aspects), Teisė, No. 59, 2006 This article describes internet based peer to peer (P2P) file sharing and its challenges to the copyright law. The P2P networks enable a person to search for and access digital copies of recordings as well as other material. In the EU, the Information Society Directive provides exclusive rights of rightholders to reproduce and make available their works and other subject matter. Therefore, individual uploaders and downloaders may face legal actions for the infringement of the copyright. In addition the author briefly reviews the scope of the EU Directive on the enforcement of intellectual property rights.
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XVI. The Netherlands Michael G. Faure and Ton Hartlief
A. INTRODUCTION 1
2006 was probably not the most exciting period for tort law in the Netherlands. The most noteworthy developments are: • • •
The presentation of a code for dealing with personal injury cases1; The entry into force of title 7.17 of the Dutch Civil Code, introducing a new insurance law; The fact that the Hoge Raad has accepted proportional liability. The latter issue is of course the most important one from the perspective of tort law and will be discussed in further detail below.
2
The introduction of the new insurance law in title 7.17 is of course more relevant for insurance law than for tort law which we discuss in this contribution. We can simply mention that of course a great deal of doctrine has been published commenting on this new insurance law2. Particularly worthwhile mentioning is a contribution by Van Tiggele in which she discusses not only case law with respect to insurance law, but also the consequences of the entry into force of title 7.173.
3
In the previous Yearbook we reported on the Act of 23 June 2005 with respect to the collective handling of mass claims4. Meanwhile this Act has already been implemented. In the so-called DES case a request to declare a binding agreement was sustained by the Court of Appeals of Amsterdam5. 1
2
3
4
5
It is the so-called Gedragscode behandeling letselschade, published in the PIV-bulletin, 5 July 2006, 1 ff. See for a comment on this Code also M.L.N. Renckens, Verkeersrecht (VR) 2005, 274 ff. See e.g. N. Frenk/F.R. Salomons, Ars Aequi 2006, 380 ff. and 439 ff., J.D. van de Meend, Advocatenblad 2006, 456 ff. and C.C. van Dam, VR 2006, 133 ff. See also the books by J.H. Wansink/J.G.C. Kamphuisen (eds.), Verzekeringsrecht, Tekst en Commentaar (2005) and M.L. Hendrikse et al., Nieuw verzekeringsrecht praktisch belicht (2005). See N. van Tiggele-van der Velde, Kroniek (schade) verzekeringsrecht 2004-medio 2005, Nederlands tijdschrift voor burgerlijk recht (NTBR) 2005, 505–519. See M. Faure/T. Hartlief, The Netherlands, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2005 (2006) 415. Hof Amsterdam 1 June 2006, Jurisprudentie Aansprakelijkheidsrecht (JA) 2006, 88.
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In the previous Yearbook we already reported on the fact that legal doctrine has pointed out that developments in case law often have a rather haphazard character, given the fact that the Hoge Raad formally only deals with the particular case at hand. Also in 2006 legal doctrine has pointed at this fact6. A typical example in this respect constitutes the developments in case law with respect to employers’ liability. We will discuss this in more detail below. Giesen referred to the developments with respect to employers’ liability as a development that seems to fluctuate (towards a more or less stringent employers’ liability)7. Hartlief asked the question whether this seemingly haphazardous case law should not give rise to an intervention by the legislator to provide more legal certainty8. On the other hand, it has also been made clear in legal doctrine that some may have too high expectations of the Hoge Raad: the Hoge Raad does (in contrast to the legislator) not have the possibility to develop a coherent system of employers’ liability in just one decision. The Hoge Raad can only, based upon the cases that are presented to it, search for the right direction, using for example suggestions and criticisms from legal doctrine. However, the Hoge Raad does not always make it easy for legal doctrine; sometimes it would of course be more desirable that the Hoge Raad provides clear indications in a transparent way so that a well-informed debate concerning the desirable scope and development of (employers’) liability could take place.
4
At the legislative level, as usual, less happened during the period under review than in case law. There are, however, a few developments on which we can report.
5
B. LEGISLATION AND EVOLUTIONS AT POLICY LEVEL 1. Compensation for Non-Pecuniary Losses Already in the first Yearbook (2001) we mentioned that a proposal had been introduced to award a fix sum of € 10,000 to specific descendants or relatives of victims as a compensation for non-pecuniary losses9. Meanwhile the parliamentary discussion concerning this proposal has not yet come to an end. The Second Chamber of Representatives has accepted the proposal, but in the First Chamber questions were asked inter alia with respect to the persons who would be able to receive the compensation and with respect to the amount10. As we mentioned in our previous report, the response of the Minister of Justice (Donner) was that the Association for Victim Aid in the Netherlands (Slachtofferhulp Nederland) has always insisted on an arrangement that would leave little or no room for debate between the parties11. As a result Minister Donner, 6 7 8 9
10 11
See inter alia T. Hartlief, Aansprakelijkheid, Verzekering en Schade (AV&S) 2006, 96 ff. I. Giesen, AV&S 2006, 1. T. Hartlief, AV&S 2005, 157. See M. Faure/T. Hartlief, The Netherlands, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2001 (2002) 356–358, no. 11–13. Documents of the First Chamber of Representatives, I, 2004–2005, 28 781, b. Faure/Hartlief (fn. 4) 416.
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in the spring of 2006, ordered research to investigate the specific demands of accident victims. As a consequence, the First Chamber of Representatives held in September 2006 that it first wishes to see the results of this research before making any decision12. However, the results of this research are only expected in two years, so that in this domain no rapid decision can be expected. This seems to be the best solution. The First Chamber of Representatives indeed has serious doubts whether the proposed arrangements would satisfy a real societal need. Hence, there would even have been a likelihood that the Chamber would radically have rejected the proposal entirely (which could still be the case after the results of the mentioned research are published). 2. Liability of Parents
7
The Christian Democratic Party in the Netherlands has launched a proposal to enlarge the strict liability of parents for the acts of their children. The context of this proposal lies in the fact that many young people are involved in acts of vandalism, theft and violence which often cause substantial damage which remains uncompensated. If it is not the victims themselves that are “stuck” with the damage, it is either the public authorities or the insurer of the victims. CDA representative, Cörüz, launched a legislative proposal holding that “the destroyer pays” and seeks a solution in liability law13. Today young vandals are, when they are at least fourteen years old, liable under tort law to compensate for the damage they have caused on the basis of art. 6:162 in combination with art. 6:164 of the Civil Code. That as such does not require any legislative change. The real problem is of course an insolvency issue. In that respect it is not surprising that the proposal of Cörüz does not look for compensation from the wrongdoers themselves, but from their parents. The proposal entails that the current art. 6:169 sec. 2 of the Civil Code, that today subjects parents to an assumption of negligence in case of wrongdoing of their fourteen and fifteen year old children, would be replaced by a strict liability. This would mean that parents would become strictly liable for all damage caused by minors who are at least fourteen years old. The victim can then address two debtors: the wrongdoer himself, who is liable in tort under art. 6:162 of the Civil Code, as well as his parents, who will be liable on the basis of art. 6:169 sec. 2 of the Civil Code. However, in practice, given the insolvency problem, many victims will of course directly address the parents. This has led to serious criticism in the literature14. One problem is that one can hardly see how this can be reconciled with the “destroyer pays” principle. Parents are then apparently considered as the real wrongdoers, since they are not able to prevent their children from engaging in criminal acts. Legal doctrine doubts whether holding parents strictly liable will have a substantial additional preventive effect. In practice, there is (unfortunately) little that these parents can do to control the behaviour 12 13
14
Documents of the First Chamber of Representatives, 12 September 2006, no. 38. See Documents of the Second Chamber of Representatives 2005–2006, 30519. For comments on this proposal see T. Hartlief, Nederlands Juristenblad (NJB) 2006, 1191; T. Hartlief, Risicoaansprakelijkheid voor ouders van oudere minderjarigen? VR 2006, 142 and N. Frenk, AV&S 2006, 111 ff. See the references in the previous footnote.
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of their criminal children. The effect of a strict liability will then only be that the costs are shifted from the victim to the parents of the criminal juvenile. The legislative proposal seems to assume that parents would be able to insure this increased liability. That is, however, very questionable since today many insurance policies exclude this type of damage caused by juveniles when the damage is caused with intent. Where today the criminal acts of the juveniles themselves are hence uninsurable, it does not seem very likely that insurers would suddenly become enthusiastic to cover the same acts when the consequences now have to be carried by their parents instead of by the juveniles themselves. It is hence very likely that this proposal cannot count on sufficient insurance coverage, which may substantially weaken its impact. It has also been held in legal doctrine that imposing such a strict liability upon parents without necessary insurance coverage seems politically unfeasible15. 3. Financial Compensation for Victims of Catastrophes Earlier, we reported on the legal and political consequences of various catastrophes that hit the Netherlands in the 1990s. Both, various natural disasters (heavy rainfall and flooding) as well as several manmade catastrophes (explosion of a fireworks factory at Enschede and a dramatic fire in a disco in Volendam) made clear that victims remained largely uncompensated. Liability law was either not applicable (in case of natural catastrophes) or not covered by insurance (since liability cover was not mandatory); in other cases insurance coverage was not available at all (flooding)16. As a result, the government largely intervened on an ad hoc basis. Precisely to avoid this type of ad hoc compensation, a committee concerning compensation in case of catastrophes and large incidents formulated various proposals for reform17 which have been largely followed by the government18. As a consequence, it is the intention of the government to achieve fundamental changes on the following bases: • • •
Provision of guarantees or insurance should be made compulsory in cases where a liable injurer can be identified; Insurance coverage by potential victims has to be stimulated in cases where a liable injurer cannot be identified; The current legislative basis for compensation of victims in case of catastrophes has to be reshaped to prevent the current ad hoc solutions.
The government is therefore suggesting the development of voluntary first party insurance, without prescribing a straightforward duty for potential victims to purchase insurance coverage (comparable to the model which exists in France). In cases where insufficient capacity would make the risk hard to insure, the state could act as reinsurer. The general idea behind this new policy is that there would be less pressure on the public budget, but that responsibility 15 16
17 18
8
This is also the criticism by Frenk, AV&S 2006, 111. See generally on the financial compensation for victims of catastrophes in the Netherlands M. Faure/T. Hartlief, The Netherlands, in: M. Faure/T. Hartlief (eds.), Financial Compensation for Victims of Catastrophes. A Comparative Legal Approach (2006) 195–226. Commissie tegemoetkomingen bij rampen en calamiteiten. Documents of the Second Chamber of Representatives 2005–2006, 29668, no. 11.
9
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would be shifted to either industry for so-called technological disasters or to potential victims in case of natural catastrophes19.
C. CASE LAW 1. Liability for Increased Danger
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In previous Yearbooks we already reported on developments in case law concerning the liability for increased danger. The case law of the Hoge Raad apparently requires that at least effective care is taken to avoid a particular increased danger20. This case law has also led to increased discussions in legal doctrine concerning the question of what potential victims can and should expect from particular warnings21. Legal doctrine has held that psychological knowledge has also to be incorporated to judge whether a particular warning concerning a certain increased risk has been effective. This has of course led to the question in case law whether judges are effectively able to make judgments concerning psychological perceptions of victims as a result of e.g. particular warnings22.
11
An important application of this liability for increased danger could be found in a case concerning a woman who died during a skating course (the particular sport is referred to as skeelering). The Court of Appeals of Arnhem found the organization liable: since the victim herself could not assess the risk of head injury, it should have forced beginners to wear a helmet23. In a decision of 25 November 2005 the Hoge Raad confirmed this decision of the Court of Appeals of Arnhem24.
12
A recent case also deals with the question whether there can be a liability for unknown danger. It considers a grower of onions who discovered that his onions suffered from a particular disease, caused by a fungus. The onion grower filed a liability suit against the guardian of the dikes who in that particular region fed onions to sheep but failed to remove the leftovers of the onions. As a consequence, the guardian of the dike did nothing to prevent particular endangering consequences such as the spreading of the disease of the onions. The Court of Appeals accepted liability of the guardian of the dike. Simply 19
20
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See in this respect for comments on these government proposals also M. Faure, AV&S 2006, 65 and Hartlief, NJB 2006, 1617. See in this respect the so-called Jet Blast Decision of the Hoge Raad which we discussed in M. Faure/T. Hartlief, The Netherlands, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2004 (2005) 428–429, no. 14–17. See in this respect more particularly Giesen, AV&S 2006, 3 ff. and also the inauguration address of I. Giesen, Handle with Care! De waarschuwingsplicht in het buitencontractuele aansprakelijkheidsrecht (inauguration Utrecht University, 2005). See our discussion of this inauguration in Faure/Hartlief (fn. 4) 441, no. 70. See K.F. Haak, Gemankeerde rechters, NTBR 2006, 39. See our discussion of this case in Faure/Hartlief (fn. 4) 418–419, no. 10–11. Hoge Raad (HR) 25 November 2005, Rechtspraak van de Week (RvdW) 2005, 132; AV&S 2006, 81 (with case note by M.J. Joseph).
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leaving the onion leftovers lying around increased the likelihood of spreading the disease. The Court, held, moreover, that it was the responsibility of the guardian to obtain information on the possible risks involved with leaving the onion leftovers lying around. However, the Hoge Raad does not agree and for a variety of reasons annuls the decision of the Court of Appeals25. First the Hoge Raad holds that the Court of Appeals merely addressed the increased probability of spreading the disease by leaving the onion leftovers lying around. In that respect attention should also have been paid to other elements to establish the liability in case of increased danger as these have been determined in earlier case law of the Hoge Raad26. The Hoge Raad mentions in that respect inter alia that the Court of Appeals should have examined in further detail the kind of acts the defendant should have taken (the Hoge Raad thereby follows suggestions made in legal doctrine). In addition, the Hoge Raad mentions (probably for the first time) that the Court of Appeals should also examine whether the particular preventive act that the defendant should have taken was customary or not. Second, the Hoge Raad holds that the Court of Appeals failed to recognize that the mere fact that the probability of spreading the particular plant disease increased is as such not sufficient to hold that the act of the defendant was wrongful. For that it should have been established that the danger became so probable that the defendant should have reasonably prevented the particular behaviour (leaving the onion leftovers lying around). Finally, the Hoge Raad is also critical concerning the fact that the Court of Appeals held that it is the responsibility of the guardian of the dike to obtain information on the potential dangers inherent in leaving the onion leftovers lying around. The Hoge Raad, however, holds that the care one can require from someone does not extend that far that one could have expected from the guardian that even when he did not know (or did not have to have known) the risks of spreading the disease (the Court of Appeals established nothing in that direction) it would have been the responsibility of the guardian to obtain information in that respect.
13
With this recent onion case of 7 April 2006, it seems therefore that the Hoge Raad is more restrictive in accepting liability for increased danger. At least the Hoge Raad seems to hold that there should be a specific reason why the defendant should have taken measures, e.g. because a particular danger is known to the professional circles to which one belongs27. The other reason for requiring those measures could be that the danger was generally known (i.e. that particular plants can be poisonous to animals). This shows that the question whether
14
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26
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HR 7 April 2006, Nederlands Jurisprudentie (NJ) 2006, 244; JA 2006, 83 with case note by W.H. van Boom. In that respect the Hoge Raad held in earlier case law that attention should also be paid to the costs involved with taking specific measures to prevent a risk. This was e.g. the case in the legionella decision of the Hoge Raad (HR 29 November 2002), NJ 2003, 549 with case note by J.B.M. Vranken: for sellers of whirlpools the dangers of developing legionella bacteria at a certain temperature and under specific circumstances should have been known.
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one had or should have had particular knowledge of specific dangers can become an important element in establishing liability for increased danger28. 2. Strict Liability
15
Case law has already previously held that, within the framework of art. 6:101 of the Civil Code, also acts of persons other than the victim can be attributed to the victim. This holds e.g. for acts of persons for whom the victim is liable towards third parties. An application of this principle can be found in a decision of the Hoge Raad of 2 December 2005, published in NJ 2006, 44429. The case concerned a grower of lilies who suffered substantial damage: he had ordered a particular pesticide, but his order was wrongly executed. The lily grower then asked someone to use the pesticide but this individual used it without reading the instructions and consequently destroyed the lilies. Both the person delivering the pesticide and the person using the product are liable towards the lily grower on the basis of art. 6:74 of the Civil Code. The procedure deals, however, with the question whether the fault of the person using the pesticide does not lead to an acceptance of contributory negligence on the part of the lily grower. An argument to accept this is the fact that the activity of the person using the pesticide belonged to the normal commercial activities of the lily grower and could as easily have been executed by an employee of the lily grower. Hence, within the context of the claim of the lily grower against the person delivering the pesticide, this fault of the person using the pesticide would be considered contributory negligence of the lily grower. Second, the question also arises whether within the framework of the claim of the lily grower against the person applying the pesticide, the fault of the person who delivered the wrong pesticide equally amounted to contributory negligence of the lily grower. The latter had to be denied because the person delivering the pesticide did not take part in the commercial activity of the lily grower and could also not have been considered as someone helping, assisting or aiding the lily grower. Again, one can therefore notice that the Hoge Raad has a reasonably restrictive interpretation of this so-called “reflex effect” of the fault of third parties on the own fault of the victim. In the comments of inter alia Frenk30 and in the comment by Vranken in NJ, attention is specifically paid to the different positions of the person delivering the pesticide and the person using the pesticide. The person using the pesticide has a much stronger position of subordination towards the lily grower as a result of which it is more reasonable to accept the so-called “reflex effect” in that particular case: his fault therefore leads to accepting fault on the side of the lily grower as well, but this is not necessarily the case for the fault of the third party who delivered the material and hence stands further away from the lily grower.
28
29 30
This is a point generally made in the contribution by K.J.O. Jansen, Rechtsgeleerd Magazijn Themis (RM Themis) 2006, 54 ff. See also more detailed on this particular issue K.J.O. Jansen, Het kennisvereiste bij gevaarzetting (2005). See also JA 2006, 25 with case note by A.L.M. Keirse. Frenk, AV&S 2006, 45 ff.
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3. Employers’ Liability We already mentioned in the earlier overviews that it seemed for a while as if the Hoge Raad was taking a step back in the tendency towards an ever increasing stringent employers’ liability31. In several decisions the employee is not awarded compensation and often the Hoge Raad adds the meanwhile standard sentence that art. 7:658 of the Civil Code does not provide an absolute guarantee of compensation. It seems as if the Hoge Raad wishes to reduce the expectations of employees. Advocate-General Spier has held that these recent decisions probably prove a modest change of direction of the Hoge Raad as far as the case law concerning employers’ liability is concerned32; others have held that the caution of the Hoge Raad in this respect can probably be explained in the light of the increasing threats and complaints of liability insurers who increasingly argue that they might totally withdraw from the liability insurance market for occupational diseases as a result of expanding liability in this domain33. Significant in this respect is probably also the tendency at the political level to come to a compulsory first party insurance for labour-related incidents which would replace liability law34. Advocate-General Spier has in many opinions expressed his concern with respect to the possible abolition of art. 7:658 of the Civil Code and the introduction of a compulsory first party insurance35. It is likely that the Hoge Raad, being aware of these developments, had the desire to show that also employers’ liability can be kept within reasonable limits. On the other hand, even recently the Hoge Raad still has had no problems with far-reaching employers’ liability in cases where employers did not take necessary preventive measures where this could have prevented the risk. In this respect one may recall the employers’ liability which was accepted in a decision of 11 November 2005 where the employee put his fingers in a machine as a result of which they were amputated. Liability was accepted since an additional safety device could have prevented the danger36. However, it seems that the Hoge Raad is rather restrictive as far as far-reaching liabilities are concerned for failures to warn or to instruct. Several examples from case law may illustrate this.
16
In our previous report we discussed the decision of the Hoge Raad in a case of a KLM pilot who, during a resting period between two flights, was involved in a serious traffic accident in the Ivory Coast37. The decision led to subse-
17
31 32 33
34
35 36 37
See Faure/Hartlief (fn. 4) 424–426, no. 21–24. See e.g. his opinion before HR 9 July 2004, NJ 2005, 260. See T. Hartlief, Aansprakelijkheids- en schadevergoedingsrecht 2005–2006, NTBR 2006, no. 5. In earlier reports we have discussed this so-called Extra Garantieregeling Beroepsrisico’s (EGB). See again Spier’s opinion before HR 9 July 2004, NJ 2005, 260. For a discussion see Faure/Hartlief (fn. 4) 425, no. 22. HR 18 March 2005, RvdW 2005, 46; AV&S 2005, 185, with case note by S.M. Christiaan and W.J. Hengeveld. See also Sociaal recht (SR) 2005, 308 ff. with case note by M.S.A. Vegter and F.T. Oldenhuis, Werkgeversaansprakelijkheid: auto-ongeval in Ivoorkust tijdens rusttijd; informatieplicht over aanvullende ongevallenverzekering, NTBR 2006, 69–74 and see our discussion in Faure/Hartlief (fn. 4) 426–427, no. 26.
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quent decisions of lower courts whereby attention is more particularly paid to the scope and consequences of this so-called KLM decision. Relevant in this respect was more particularly the fact that the Hoge Raad decision was not based on the general provision concerning employers’ liability of art. 7:658 of the Civil Code, but on art. 7:611 of the Civil Code38. The question is more particularly addressed in lower case law what the precise consequences are for victims who would not be able to claim compensation under the general employers’ liability of art. 7:658 of the Civil Code; does the KLM decision of the Hoge Raad mean that they can then generally call on the liability rule of art. 7:611 of the Civil Code39?
18
A few decisions of the Hoge Raad in 2006 dealt (again) explicitly with the issue of employers’ liability for occupational diseases. In a Hoge Raad decision of 17 February 2006 much attention was paid to the fact that a claim was brought years after an employee had been exposed to a particular risk40. The Hoge Raad seems to stress this so-called latency problem since it is afraid of the well-known criticism that norms and standards of today would be applied to old cases, which would amount to a retrospective application of employers’ liability. The decision is hence favourable for the employer. In addition, it should be mentioned that, after the Hoge Raad rendered its first decision concerning employers’ liability for repetitive strain injury (RSI) on 20 March 200541, the Hoge Raad rendered a second decision on 2 June 2006 concerning the same RSI problem42. However, again the decision dealt with procedural issues rather than with the contents of a potential employers’ liability for repetitive strain injury. It seems that the Hoge Raad is extremely careful in this respect and wishes to avoid general statements concerning employers’ liability for RSI.
19
Finally, we should repeat the importance of the Hoge Raad decision of 20 May 2005 where employers’ liability was accepted for so-called psychological damage43. This decision led to several comments in legal doctrine concerning employers’ liability for psychological damage44 and concerning employers’ liability for a so-called burnt-out45. The Hoge Raad decision has already been applied in a decision of the Kantonrechter of Heerlen of 19 April 200646. 38
39
40 41 42 43 44
45 46
On the relationship between the employers’ liability under art. 7:658 of the Civil Code and art. 7:611 of the Civil Code we reported in an earlier Yearbook. See Yearbook 2004 (2005), no. 28, 434–435 and Yearbook 2003 (2004), no. 55-58, 297–298. See in this respect inter alia the Civil Code of the Hague 28 December 2005, Nederlandse Jurisprudentie Feitenrechtspraak (NJF) 2006, 106; Court of Appeals of The Hague 13 January 2006, JA 2006, 82 and Civil Code of Alkmaar 25 January 2006, Jurisprudentie Arbeidsrecht (JAR) 2006, 43. HR 17 February 2006, RvdW 2006, 204. For a discussion see Faure/Hartlief (fn. 4) 429–430, no. 34. HR 2 June 2006, LJN: AW6167. See our discussion in Faure/Hartlief (fn. 4) 430–431, no. 35–36. See e.g. M.S.A. Vegter, Weekblad voor Privaatrecht, Notariaat en Registratie (WPNR) 6653 (2006) 101 ff. and E.J. Houben, Arbeidsrecht 2 (2006) 31 ff. See S.D. Lindenbergh, Ars Aequi 2005, 722. Kantonrechter Heerlen 19 April 2006, JAR 2006, 108.
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As far as employers’ liability is concerned, we should recall the Hertel decision of 17 December 2004, discussed in the previous Yearbook whereby employers’ liability was extended to damage suffered by subcontractors and to damage suffered by persons other than the own employees of the employer. This case was applied to asbestos in a Hoge Raad decision of 25 November 2005 which we equally discussed in the previous Yearbook47. In the latter decision, Eternit was held liable as being the producer of asbestos also for damage which was not suffered by an employee. It can be expected that also in the future similar liability cases may arise where guardians of a road or their suppliers will be held liable when they used asbestos as construction material for the road. A recent example considers a judgment of the Civil Court of Almelo of 19 April 200648. Striking in this case is that Eternit is not held liable towards a farmer who used asbestos waste to construct a place and subsequently died of mesothelioma. Legal doctrine held that the Civil Court of Almelo was too restrictive in that particular case49.
20
At the end of 2005 (but in decisions published later), the Hoge Raad had to decide whether there is so-called conscious recklessness on the side of the employee. The latter would exclude employers’ liability. In a case of 2 December 2005, the Hoge Raad indeed accepted that this was the case. However, also a procedural aspect played a role, being that the victim had not sufficiently tried to reject the arguments of the employer50. In a decision of 14 October 2005, the question arises whether the interpretation given to this concept of conscious recklessness within the framework of art. 7:658 of the Civil Code (employers’ liability) also plays a role when it is incorporated in other legal provisions (where hence also conscious recklessness is decisive for liability). The Hoge Raad confirms this as far as art. 7:661 of the Civil Code is concerned51, legal doctrine has held that the same would be the case for other places where this conscious recklessness plays a role, such as inter alia in art. 6:170 sec. 3 of the Civil Code and in case of the application of the right of redress52.
21
4. Causation The most spectacular development in tort law in the Netherlands in 2006 is without any doubt the fact that the Hoge Raad accepted in its decision of 31 March 2006 so-called proportional liability53. The case dealt with a former 47 48 49 50
51
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Faure/Hartlief (fn. 4) 427–429, no. 27–33. Civil Court of Almelo 19 April 2006, JA 2006, 91. Hartlief, NTBR 2006, no. 19, fn. 66. HR 2 December 2005, JA 2006, 12 with case note by W.H. van Boom, SR 2006, 99 with case note by M.S.A. Vegter. HR 14 October 2005, NJ 2005, 539; JA 2006, 10 with case note by W.H. van Boom; Arbeidsrechtelijke Annotaties (2006) 46 ff. with case note by C.J.H. Jansen and C.J. Loonstra, SR 2006, 25–26 with case note by R.S.A. Vegter. See Hartlief, NTBR 2006, no. 20, fn. 69. HR 31 March 2006, RvdW 2006, 328; JA 2006, 81 with case note by W.H. Bouman; SR 2006, 196 ff. with case note by M.S.A. Vegter. See also on this issue J.S. Kortmann, NJB 2006, 1404 ff.; C.H. van Dijk, De Hoge Raad stemt in met het leerstuk van proportionele aansprakelijkheid, NTBR 2006, 294–306; A.L.M. Keirse, Tijdschrift Voor Vergoeding Personenschade (T.v.P.) 2006, 66 ff. and I. Giesen, WPNR 6680 (2006) 645–646.
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employee who had been exposed to asbestos during his employment and who contracted lung cancer. The employee filed a claim against his employer based on the employers’ liability provision of art. 7:658 of the Civil Code and clearly argued that his lung cancer was caused by the exposure to asbestos. The employer, on the other hand, argued that the cancer may have a cause other than exposure to asbestos. The employer more particularly referred to the fact that the employee was a smoker, that there could be a natural physical condition (genetically) causing the lung cancer or that it could have been caused by the so-called background risk. Scientifically, it was not possible to establish which of these various causes led to the lung cancer in the particular case. It was merely possible to provide an estimate that there was a probability that exposure to asbestos was the cause of the disease. The Hoge Raad rejects an all-or-nothing approach which in this respect would mean that the effects of causal uncertainty are either shifted to the employer or to the employee; it clearly chooses a proportional approach. The Hoge Raad holds that “when an employee has been exposed to asbestos, but the employer argues that smoking by the employee would be a more probable cause of the lung cancer and the disease could also have been caused through circumstances for which no one can be held liable (the background risk) or through a combination of such elements, it would be the logical solution that the judge appoints an expert to obtain information on the magnitude of the likelihood that the personal injury of the employee was caused during the exercise of his employment by a wrongfulness which is attributable to the employer”. The Hoge Raad continues “if it appeared that this likelihood is very small, the result would generally be that the judge rejects the claim, whereas, if the likelihood were very high, he would sustain the claim”. The Hoge Raad also provides a few interesting considerations to motivate its choice of the proportional approach: “Generally, it is, also regarding the scope of the protected interest – preventing health damage of employees – and the violation of the particular norm by the employer as well as taking into account considerations of fairness and equity, unacceptable that uncertainty concerning the degree to which the wrongfulness of the employer contributed to the damage of the employee would completely be shifted to the employee”.
23
However, the Hoge Raad equally argues: “It is equally unacceptable, but in that case for the employer, that even when the latter has violated his duty of care towards the employee, that the result of causal uncertainty would be completely shifted to the employer notwithstanding the not very small likelihood that either circumstances that are attributable to the employee (like smoking, genetic constitution or ageing) or external causes have caused the damage (as well). In that respect it should be noted that although the employee cannot be blamed for the latter three circumstances, they should, in the relationship to the employer, be risks to be borne by the employee”.
24
For these reasons, the Hoge Raad clearly chooses a proportional approach:
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“Taking into account the principles which underlie articles 6:99 and 6:101 of the Civil Code, it has to be accepted that when an employee suffers damage which, taking into account the aforementioned probabilities, can be caused both by an attributable shortcoming of his employer in following his obligation towards his employee to provide a sufficient protection of his health against dangerous dust during the exercise of his work, as well as through a circumstance which can be attributed to the employee himself or, as mentioned before, through a combination of these, where it cannot be established with sufficient certainty to which extent the damage of the employee has been caused by all of these circumstances or one of those, the judge can condemn the employer to compensate the entire damage of the employee, but reducing the employer’s duty to compensate proportionally, based on a motivated estimate, to the extent to which circumstances which can be attributed to the employee have also contributed to his damage”. Commentators have pointed at the fact that the Hoge Raad, on the one hand, clearly accepts proportional liability but, on the other hand, explicitly provides sufficient room for further refinements. The Hoge Raad indeed uses the phrase “generally” three times in important considerations of the decision, indicating that either escape possibilities still could be created or that the consequences of this have not been thought through yet in very great detail54. Also Advocate-General Spier advised the Hoge Raad not to provide general and principle considerations on proportional liability in this case, related to the fact that the case had not been presented in an optimal way to the Hoge Raad55. Also when one looks at the contents of the decision, it becomes clear that this decision of 31 March 2006 does not provide a final answer since many issues have not been finally decided yet. This concerns e.g. the following questions: • •
54
55
56
When exactly can one speak of a very small or a very large probability (in which case the proportional approach will be excluded)? The Hoge Raad clearly mentions that the judge “can” apply a proportional approach. Does that mean that the judge “can” apply this proportional approach, but could the judge then also abstain from applying the proportional approach or does the word “can” rather refer to the legal basis for the liability? Would that imply that the proportional liability could, rather than being based on art. 6:99 in combination with art. 6:101 of the Civil Code, for example, also be based on art. 6:98 of the Civil Code? Legal doctrine has argued that the latter interpretation seems the more logical. Accepting the first interpretation would mean that judges could still opt to apply an all-ornothing approach, whereas the decision of the Hoge Raad makes clear that this would be unacceptable from a perspective of fairness and equity56. See T. Hartlief, Aansprakelijkheids– en schadevergoedingsrecht 2005–2006, NTBR 2006, no. 17. See the opinion of Advocate-General J. Spier in 6.29 and 6.30, HR 31 March 2006, RvdW 2006, 328. Hartlief, NTBR 2006, no. 17, fn. 60.
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•
26
How should a case be dealt with when there has been multiple exposure to asbestos with various employers57? In addition, the question can also be asked what the consequences may be of this case law whereby the Hoge Raad clearly rejects the all-or-nothing approach in case of causal uncertainty, where in the past it was precisely this approach which was chosen. In this respect one can, for example, refer to the application of art. 6:99 of the Civil Code in the well-known DES decision of the Hoge Raad58. Does the recent decision of 31 March 2006 also mean that in cases such as the DES case proportional liability would have to be applied? In the context of the DES case this would have meant that a market share liability would have been preferred. At the time (in 1992) this was suggested by (then) Advocate-General Hartkamp, but rejected by the Hoge Raad. The question of course arises whether the Hoge Raad would still stick to that same position or would now be more receptive to alternative solutions, such as a market share liability, which would equal a proportional solution to the DES case.
Finally, it should also be mentioned that, on the same day, the Hoge Raad rendered another decision concerning employers’ liability for occupational diseases. Although the second case dealt with someone who was not a smoker, proportional liability was also accepted in that case59. In both cases the crucial element in deciding the case refers to the number of years of exposure to asbestos crystals. It is assumed that every year of exposure to asbestos crystals increases the likelihood of incurring lung cancer by 1%. This in fact means that, for applying the proportional approach, it apparently does not matter whether the employee was a smoker or not. However, it may be that precisely with respect to this point a distinction still has to be made between smokers and non-smokers. A report from the Netherlands Health Organization from 2005 seems to indicate that if someone is a non-smoker, the increase of the likelihood of incurring lung cancer would be 3% every year. In the particular case, this would mean that not just 63.5% of the damage would have to be compensated, but rather 84%. Moreover, if there were an 84% probability, the question could also be asked whether in that case there should not be an employers’ liability for the full damage. This again shows that the Hoge Raad decisions of 31 March 2006 do not provide a final answer to all questions yet. 5. Damages
27
Recent case law deals with the consequences of non-pecuniary losses in case of death. In general, for an award of non-pecuniary losses to be passed on to a descendant in the sense of art. 6:106 sec. 2 of the Civil Code, it is necessary that there is some provision of the deceased holding that a claim on com57
58 59
See in this respect the contribution of Kortmann, NJB 2006, 1404 ff.: since the Hoge Raad refers explicitly to art. 6:99 of the Civil Code in its decision it believes that in this case a joint and several liability between the multiple employers would apply, at least for the percentage of the damage which remains after the likelihood that the cancer would have been caused by smoking has been deducted. HR 9 October 1992, NJ 1994, 535 with case note by C.J.H. Brunner. HR 31 March 2006, LJN: AU6093.
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pensation of non-pecuniary losses exists. Difficulties often arise concerning the correct interpretation of information provided by the deceased in specific cases. The Hoge Raad holds that decisive in this respect is the meaning that the person to whom the announcement was addressed gave and could have given under the particular circumstances to the announcement made. The decision of the Hoge Raad of 3 February 200660 deals with the situation where an attorney of a patient in a hospital filed a liability claim against the hospital “for the damage which is the result of the injury suffered by the patient”. In this respect the Hoge Raad holds that nowadays it is customary in cases where serious personal injury is suffered not only to claim compensation of economic loss, but also for non-pecuniary losses. Another case dealing with the assessment of damages concerned Ms. Schut who went on a company outing. During the outing she participated in an activity on a so-called toggle track (an activity whereby one moves from one high point to another by means of a rope), fell and as a result of her fall subsequently died. The organizer of the activity (Organice) accepted it was liable for the consequences of the accident. Ms. Schut left a partner behind, Mr. Pruisken with whom she was not married; he was also not formally registered as her partner. To which damages is hence Mr. Pruisken entitled? The Court of Appeals holds that both the text of the Civil Code and the parliamentary history make clear that it was the intention of the legislator to make a distinction between, on the one hand, married and registered partners (dealt with in art. 6:108 sec. 1a of the Civil Code) and other partners simply living together (art. 6:108 sec. 1c of the Civil Code). For the latter, more stringent conditions apply for a claim for compensation.
28
The Court of Appeals holds that in this particular case the couple living together had purchased a house, with the purchase price and mortgage based on the income of both partners. Given the fact that the deceased partner, with her income, contributed substantially to the living and other expenses and given the fact that the surviving partner is working full-time, it can be expected of the survivor that he sell the house and move to a cheaper dwelling. If the survivor were the husband or registered partner of the deceased, this would not be an issue since in that case less stringent conditions apply to allow him a claim for damages. The Court of Appeals therefore bases this decision both on the difference in text of the provisions in the Civil Code and on the parliamentary history of art. 6:108 of the Civil Code.
29
The Hoge Raad, however, comes to a different decision, also largely relying on parliamentary history61. The Hoge Raad does not analyse parliamentary history itself, but refers to an extensive analysis provided in the opinion by AttorneyGeneral Hartkamp. He convincingly shows that the text of art. 6:108 sec. 1c of the Civil Code (dealing with compensation due in case of partners living
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HR 3 February 2006, NJ 2006, 121; JA 2006, 36 with case note by K. Aantjes. HR 16 December 2005, RvdW 2006, 1; JA 2006, 21 with case note by W.H. van Boom; Ars Aequi 2006, 281 ff. with case note by T. Hartlief.
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together) indeed shows a certain reserve of the legislator. However, Hartkamp also shows that the legislative history never indicates a distinction between the two cases (married or registered partners on the one hand versus people living together on the other hand) as has been suggested by the Court of Appeals. On the contrary, Hartkamp points at various places in parliamentary history where the legislator has been in favour of the equal treatment of the two cases. The Hoge Raad therefore follows the latter track: the legislator did not wish these cases to be treated separately; the crucial issue to determine a claim for damages relates to the needs of the survivor, as this has been interpreted also in art. 1:397 sec. 1 of the Civil Code. Differently than the Court of Appeals, the Hoge Raad argues that this does not merely refer to needs restricted almost to poverty, but that it relates to a specific situation of a household of which both the deceased and the survivor were a part.
31
The result is that for “ordinary” people living together (hence not married or registered partners) the regime of art. 6:108 sec. 1a of the Civil Code does formally not apply: they do indeed fall under another “letter” of the Civil Code with a different text. The intention here, according to the Hoge Raad, is not to impose more stringent requirements as far as fairness is concerned than would generally apply. It is merely necessary that the survivor has a need for support as regards his living expenses. Hence, the person filing a claim under c is thus not treated differently than other claimants. The concept of “need” in this respect should thus not be limited to need in the sense of poverty (as this has been interpreted in art. 1:392 sec. 1 BW). The latter would mean that there would only be a need when the survivor does not even have the bare necessities of life and would almost “lie in the gutter”. It appears that the Court of Appeals had almost applied this interpretation: since survivor Pruisken was not in dire straits, the Court of Appeals assumed that he was not entitled to claim living expenses. As we have shown, the Hoge Raad came to a different judgment.
32
A second important issue which was also dealt with in this important decision of 16 December 2005 concerns the compensation for the costs of domestic help. Pruisken had filed a claim in this respect and the Court of Appeals (again) rejected this on the basis of two arguments: • •
33
Art. 6:108 sec. 1d supposes that the deceased took complete care of the household; In order to receive compensation it is necessary that the survivor has real and actual expenses.
The Hoge Raad rejects both arguments again referring both to the text and the parliamentary history of art. 6:108 of the Civil Code. According to the Hoge Raad, neither of these would lead one to conclude that an interpretation of art. 6:108 sec. 1d be restricted to cases that were considered normal at that time, being the situation where one of the partners (usually the woman) did not work and was fully responsible for the household. The situation in this respect has of course fully changed. An application of art. 6:108 sec. 1d on the basis of the interpretation provided by the Court of Appeals would today provide un-
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satisfactory results since it is no longer feasible that only the deceased was the sole breadwinner. The second element in the reasoning of the Court of Appeals is that Pruisken would not have incurred real and actual costs to take care of the household in a different manner. This requirement follows the condition of a concrete assessment of damages, one of the principles of damages in Dutch tort law. The claim against the Court of Appeals in fact is based on an abstract assessment of damages and seems to be followed by the Hoge Raad. The Hoge Raad clearly stipulates that in order to assess whether a survivor suffers damage in the sense of art. 6:108 sec. 1d of the Civil Code, it is not decisive whether at the time of the decision of the judge real costs were incurred to take care of household tasks. A further elaboration of this point is, however, not provided by the Hoge Raad. One can think of the situation where the survivor does not incur concrete costs for the simple reason that he personally undertakes the household tasks himself. He could do so by working less himself or by using a part of his spare time for the household. In the first case he does not incur real costs, but suffers a real damage in the sense of a reduced income which could in principle be compensated62. In the second case, a reasoning could be followed which is comparable to that in the well-known Johanna Kruidhof case. This concerned a case where parents spent much of their free time taking care of their injured child63. If it were in the given circumstances reasonable to use professional help, but the survivor does not call on such help, a compensation equal to the costs that have been saved (by not using professional help) would be reasonable. Perhaps some would argue that the case is different since Pruisken has not incurred real costs in doing the household duties, but has probably received unpaid help from friends and family. However, an argument in favour of an abstract assessment of damages is of course that the judiciary probably does not wish to engage in these kinds of detailed discussion. The crucial issue seems to be whether, in the given circumstances, it would be reasonable to call on professional help (in that case compensation would be due). If indeed no professional help were provided, it would be unreasonable to let the liable party benefit from the fact that the help is in the specific case provided by family or friends. By this more abstract approach, detailed discussion concerning the precise way in which the help is provided can thus be avoided. This is also the interpretation of the Hoge Raad decision followed by the Civil Court of Den Bosch in a decision of 1 March 200664. The Civil Court indeed assumes that the Hoge Raad accepted an abstract assessment of the damages. Hence, it is only relevant to see whether it would be normal to call on professional help. That would be sufficient for a claim for damages; it would further be irrelevant whether in the concrete case there were costs for this professional help or whether the problem was in fact solved in another way.
62
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Albeit that the compensation would probably be reduced to the amount of costs that would normally be paid to professional help. This would be an application of the victim’s duty to reduce the damages himself as much as possible. HR 28 May 1999, NJ 1999, 564 with case note by A.R. Bloembergen. Civil Court of Den Bosch 1 March 2006, NJF 2006, 266.
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6. Statute of Limitation and Recourse
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The case law concerning the statute of limitation on the basis of art. 3:310 of the Civil Code has until now been more or less clear. However, questions still arise as far as the statute of limitation that applies with respect to actions in recourse. In principle also regarding recourse actions the five year term applies65. Questions, however, arise as to the issue when this term precisely starts to run. The Civil Court of Arnhem decided that this is the moment that the institution which seeks redress paid the creditor66. However, in a case note to this decision, Smeehuyzen shows that in fact no single moment generally leads to “right” solutions. Smeehuyzen therefore proposes to take as a starting point that the statute of limitation starts to run when the institution seeking redress was really capable of filing a claim. This corresponds with the Hoge Raad decision in the well-known Saelman case. The person seeking redress would then lose his claim when he could be blamed for having waited with the filing of his claim without any valid reason. This would also correspond with the reason for having a statute of limitation in the first place. The relevant question then of course becomes when one can reasonably expect that a claim has to be filed. This will often depend upon the circumstances of the case67.
D. DOCTRINE 1. Doctrine with Respect to a Few Relevant Developments
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In addition to the doctrine we already referred to in footnotes, a few interesting debates took place in 2006 which are especially worth mentioning: a) Liability of Supervisors or Immunity?
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In the Introduction we already mentioned that financial compensation for victims of catastrophes and more particularly the role of liability rules in that respect is still a hot issue in the Netherlands. Referring to natural catastrophes the question often arises whether supervisory authorities can be held liable, especially when it appears that so-called “primary tortfeasors” are either insolvent or have acted wrongfully without intervention by supervisory authorities. The reader will remember that the Hoge Raad limited the liability of supervisors in the decision concerning the tug boat “Linda” of 7 May 200468. Following this case a lot of legal doctrine has dealt with the question whether supervisory authorities deserve ordinary treatment (just as any other tortfeasor) or should only be liable to a limited extent69. Hijma (who wrote the case note under the Linda decision) and Van Maanen seem to be in favour of a limitation of 65 66 67 68
69
As has e.g. been confirmed in HR 4 June 2004, NJ 2006, 323 with case note by J. Hijma. Civil Court of Arnhem 28 December 2005, JA 2006, 61. For further details see Hartlief, NTBR 2006, no. 25. HR 7 May 2004, NJ 2006, 281 with case note by J. Hijma. See the discussion in Faure/Hartlief (fn. 20) 424–426, no. 6–8. In favour of a limitation of liability of supervisory authorities is G.E. van Maanen, RM Themis 2006, 64–65; against this is I. Giesen, RM Themis 2006, 65.
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liability; Giesen and Albers rather reject an immunity of liability for supervisory authorities70. Hartlief supports the latter point of view; he does not see the danger of undesirable side effects of a liability of supervisory authorities and moreover he expects positive effects of such a liability as far as giving incentives for prevention and improving the quality of services are concerned71. Finally, we should mention in this respect that a research study has been commissioned by the Research Institute of the Dutch Ministry of Justice72 (Wetenschappelijk Onderzoek- en Documentatiecentrum (WODC)) which has been executed under supervision of Professor Cees van Dam by the British Institute of International and Comparative Law (BIICL). b) Medical Liability
In 2005 a remarkable book was published by Giard, who is both lawyer and physician and who pays specific (critical) attention to the way in which liability law establishes standards of care for physicians73. Developments as far as the case law with respect to medical liability are concerned have been sketched by De Ridder in a recent overview74. De Ridder of course pays much attention to the case law with respect to wrongful life75. He also deals with the specific importance that the Hoge Raad attaches to following medical protocols and to problems of causation. In that respect De Ridder also discusses proportional liability, which is also applied by lower case law with respect to medical liability. In this respect he also critically discusses a decision of the Civil Court of Maastricht of 13 July 200576. In that particular case the Civil Court of Maastricht confounded the probability that a patient would develop a dystrophy ex ante after medical negligence (which was evaluated at not more than a few percent) with the probability ex post that a dystrophy which has developed was a result of a particular medical negligence (which was in the particular case estimated at 50%).
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Much literature is also devoted to the wrongful life decision of the Hoge Raad77. Van Boom devoted a highly interesting study to the general problem of birth defects and claims concerning a whole variety of handicaps and birth defects78. In particular Van Boom pays much attention to shifts from a pure tort law regime to alternative compensation schemes. Inter alia he examines the grounds
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71 72
73
74 75
76 77
78
See C.L.G.F. Albers, Overheidsaansprakelijkheid voor gebrekkig toezicht en ontoereikende handhaving, NTBR 80 (2005) 482–496. T. Hartlief, Aansprakelijkheid- en schadevergoedingsrecht 2005–2006, NTBR 2006, no. 3. See C.C. van Dam, Aansprakelijkheid van toezichthouders, Wetenschappelijk Onderzoek en Documentatie Centrum (Scientific Research and Documentation Center, WODC) 206. We already referred to this dissertation in our previous Yearbook contribution. See R.W.M. Giard, Aansprakelijkheid van artsen, juridische theorie en medische praktijk (dissertation Leiden University, 2005). M.J.J. de Ridder, Tijdschrift voor Gezondheidsrecht (TVG) 2006, 216 ff. We extensively discussed the wrongful life discussion of the Hoge Raad in our previous contribution: Faure/Hartlief (fn. 4) 421–422, no. 15–16. Civil Court of Maastricht 13 July 2005, JA 2006, 44 with case note by M. Zaadhof. See inter alia H.J. van Kooten/H.M. Wattendorf in: H.J. van Kooten (ed.), Hartkamp variaties (2006) 41 ff., C.H. Sieburgh, WPNR 6637 (2005) 755 ff. and K. Dijkhoff/W. Keukens/S. Reynaers, Ars Aequi 2006, 9 ff. See also S.B. Bakels, Ars Aequi 2006, 568 ff. W.H. van Boom, AV&S 2006, 8 ff.
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for these shifts (failure of insurance markets, perception by physicians, etc.) and the particular needs of the families involved. He provisionally concludes that the time is not yet ripe for the Netherlands to shift to a no-fault compensation regime for medical mishaps. Van Boom bases this especially on the fact that, according to him, there is currently a lack of both knowledge and empirical evidence. Therefore he concludes that the question remains whether it is indeed necessary to shift to a no-fault compensation regime since it is unclear that there is actually a major problem. Also highly interesting (and debatable) is the position of Van Boom that an improvement of the communication with patients would not be necessary79. This raises more general questions with respect to the issue whether acknowledging a mistake would have consequences for tort law80. c) Assessment of Personal Injury Damage
39
There is always debate concerning the question of how personal injury damage has to be calculated whereby some (e.g. Pals) argue in favour of a more individualized and less standardized approach81 whereas others are more critical in that respect (e.g. Pott)82. Hartlief showed that, as far as the assessment of personal injury damage is concerned, in fact an abstract assessment of damages, based on certain standards and norms is taking place83. In principle the assessment of the damage suffered by the particular victim will take place in concreto. However, in practice various abstract notions are used to assess the damages to be awarded. This raises especially questions e.g. when someone at a very young age becomes severely handicapped as a result of which the victim becomes totally dependant upon others and will never be able to work. A specific and concrete damage assessment would mean that one would, for example, if a baby of 18 months suffers severe brain damage during a traffic accident, have to examine how this person may have developed even though the victim will not be able to realize his situation and will never be able to work. In those situations it will practically be impossible to imagine what the situation would have been without the accident. Moreover, questions can be asked with respect to the goal of compensation in these cases. Simply awarding a monetary compensation in those cases will hardly be effective. Some have argued that in those cases it is unrealistic to compare with the hypothetical situation the victim would have been in without an accident, but that one would rather have to examine what the particular needs of that victim are today. Damages would then have to be assessed on the basis of the specific needs of the victim, e.g. as far as treatment or care is concerned. Hartlief holds that the dogma of the full compensation of the victim in concreto could inhibit rather than help providing a just solution in these kinds of cases84. 79
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81 82 83 84
Compare in this respect the inauguration address of J. Legemaate, Patientenveiligheid en patientenrechten, inauguration address VU (2006). See in this respect especially after the so-called Schiphol fire A. Breninkmeyer, NJB 2006, 1438. L.H. Pals, VR 2006, 5–8. M. Pott, VR 2006, 169–173. Hartlief, AV&S 2005, 159–168. See Hartlief, NJB 2006, 831.
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d) Prevention and Care
Recently, debate arose again in the literature on the functions and aims of tort law. In this respect a debate took place between Van Maanen who launched an attack on the economic approach to tort law and various law and economics scholars. After Visscher had provided an economic analysis of Dutch tort law, following his doctoral dissertation85, Van Maanen launched a severe attack on this economic approach86 which led to a reaction by Visscher and Van den Bergh87. This discussion deals with the role of prevention in tort law. A related issue deals with the significance of the so-called precautionary principle for tort law. Its importance has already been stressed for the area of environmental liability, but it could potentially also be applied to new risks. Some have, however, severely criticised a too broad application of this precautionary principle88. The previous onion decision of the Hoge Raad which we discussed above (supra no. 12 ff.) could imply that today the Hoge Raad is still rather restrictive in accepting obligations to investigate possible risks if there is not at least an indication for such an investigation. However, one should be careful with such a conclusion. The Hoge Raad may be restrictive as far as “natural” risks are involved, such as with onions or plants. However, the Hoge Raad may apply a much stricter standard when technological risks are involved. In that respect we can point at the fact that Advocate-General Spier has repeatedly pointed at a possible wider application of the precautionary principle. In that respect he also regularly points at the role that insurers, given their broad knowledge in various areas, could play in that respect89.
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2. Proceedings Volumes a) N. van Tiggele-van der Velde/J.G.C. Kamphuizen/B.K.M. Lauwerier (eds.), De Wansink-bundel. Van draden en daden. Liber Amicorum Prof. Mr. J.H. Wansink (Kluwer, Deventer 2006)
This book is the liber amicorum for the well-known Rotterdam insurance law professor, Han Wansink. The book contains almost 500 pages and many contributions on liability and insurance law by well-known Dutch tort lawyers from academic life and legal practice.
85 86
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L. Visscher, Ars Aequi 2005, 1000 ff. G.E. van Maanen, Een rechtseconomisch perspectief op … vallende bloempotten, NTBR 2006, 153. L.T. Visscher/R.J. van den Bergh, Van Maanen’s misvattingen over de rechtseconomie, NTBR 2006, 307–309 with comment by G.E. van Maanen, Rechtseconomie, rechtswetenschap en vallende bloempotten. Een kort weerwoord aan Visscher en Van den Bergh, NTBR 2006, 309– 310. See R. Pieterman/J.C.Hanekam/L. Bergkamp, NJB 2006, 2 ff. See e.g. the opinion of Advocate-General Spier for the second RSI decision of the Hoge Raad, HR 2 June 2006, LJN: AW6167.
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b) Saskia Klosse et al. (ed.), (H)ad Geers het geweten! Arbeid en gezondheid. Schipperen tussen verantwoordelijkheid en bescherming (Kluwer, Deventer 2006)
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This is the volume dedicated to commemorate the Maastricht professor of labour law, Ad Geers, who died on 31 December 2005. Many of his colleagues have contributed to this volume inter alia with contributions concerning compensation for labour-related damage. 3. Monographs a) Asser-Hartkamp/Sieburgh III, De verbintenis uit de wet (Kluwer, Deventer 2006) b) M. Faure/T. Hartlief/K. Ammerlaan, Financiële voorzieningen na rampen in het buitenland (Boom Juridische Uitgevers, Den Haag 2006)
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This book deals with the financial compensation for victims of catastrophes. Since the Netherlands is considering changing the compensation for victims of catastrophes, the Dutch Ministry of the Interior asked the Maastricht European Institute for Transnational Legal Research (METRO) to examine the financial compensation for victims of catastrophes in Belgium, Germany, France and Sweden. The book describes the systems in these countries on the basis of contributions by rapporteurs and provides a comparative summary and policy conclusions. c) M.L. Hendrikse/J.G.J. Rinkes, Naar een klachteninstituut financiële dienstverlening. Preadvies voor de Stichting Klachteninstituut Financiële Dienstverlening 2006 (Zutphen, Paris 2006)
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This book deals with claims’ settlement concerning financial services and discusses how conflicts in the financial sector are dealt with from a Dutch and a comparative legal perspective. The specific aim of the book is to propose a specific institution that would deal with consumer claims in this domain. d) E.H. Hondius/G.J. Rijken (eds.), Handboek consumentenrecht (Zutphen, Paris 2006)
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This volume is written by many specialists in the area of consumer law and is a basic handbook on consumer law in the Netherlands. It deals inter alia with European consumer law, but also with the varying position of consumers in relation to differing businesses. Attention is inter alia also paid to misleading advertising and to product liability. e) J. Hulsman et al., Tijd is geld (PIV, Den Haag 2006)
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This is a volume drafted by the Stichting Personenschade Instituut van Verzekeraars (PIV) on the importance of time in the procedure of settling (personal injury) claims. Lawyers and others contribute to the importance of the notion of time inter alia in assessing damages and in the reintegration of victims.
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M. Jansen, Smartengeld (ANWB, Den Haag 16th ed. 2006)
g) J. Spier et al., Verbintenissen uit de wet en schadevergoeding, (Kluwer, Deventer 4th ed. 2006) h) J.L. Smeehuijzen, Verjaring van het recht op vergoeding van personenschade (Boom, Den Haag 2006)
4. Dissertations a) S.B. van Balen, Zorgplichten in de effectenhandel, Dissertation, Rijksuniversiteit Groningen
This is the dissertation by Sander van Balen defended at the University of Groningen. It deals with the specific duties of care in the financial sector with respect to those (especially consumers) who deal in a variety of financial products, such as stocks. Van Balen discusses the specific duties of care of financial service providers and the contractual liabilities that can arise in case of a violation of those duties.
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b) C.N.J. Kortmann, Onrechtmatige overheidsbesluiten, Dissertation, Utrecht University (Kluwer, Deventer 2006)
This dissertation by Kortmann deals with the liability of public authorities for governmental acts (such as licences and other decisions) that may either be wrongful or cause damage to others. Kortmann discusses under which circumstances public authorities can be held liable and formulates various suggestions for improvement.
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5. Inaugurations a) N. Frenk, Naar echte eigen schuld? Over toerekening aan de benadeelde in het aansprakelijkheids- en verzekeringsrecht (Amsterdam 2006)
This is the inauguration address of Professor Niels Frenk on the occasion of his inauguration at the Free University of Amsterdam. He deals with the position of the victim in both tort and insurance law from various angles.
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b) S. Lindenbergh, Alles is betrekkelijk (Rotterdam 2006)
This is the inauguration address of Rotterdam Professor Siewert Lindenbergh, an authority in the field of tort law in the Netherlands. It deals with the wellknown relativity principle in Dutch tort law and therefore discusses various aspects of the relationship between the violation of a specific norm and the sanction in tort law.
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E. CONCLUDING REMARKS Also in 2006 there were again a few (albeit less than in previous years) interesting evolutions on which we could report. The most spectacular news for
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2006 is probably the acceptance of proportional liability by the Hoge Raad. At the legislative level less happened. The legislative initiative that started a few years ago as far as providing a framework for non-pecuniary losses is concerned has not made any progress at all. Most of the development in tort law thus comes rather from the Hoge Raad than from the legislator. Undoubtedly, many will still write about the consequences of the acceptance of proportional liability by the Hoge Raad. We already indicated that still many questions need to be answered and it is likely that the Hoge Raad can further refine its case law in subsequent decisions.
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One of the consequences of accepting proportional liability is that also nonlawyers and more particularly experts will probably play an even greater role than in the past. Probabilities, chances and risks and the scientific estimate of those will increasingly play a role in liability law. Thus one could argue that to some extent tort lawyers are probably not fully in charge any longer. That may also be the case from another perspective: also the European Court of Human Rights may increasingly become important for Dutch tort law90. Thus one could ask the question whether for instance the fact that the number of persons entitled to compensation in case of personal injury damage is severely limited under Dutch law is compatible with the European Convention on Human Rights. The same question could also be asked with respect to financial limits on damages in specific legislation in the area of transport law. It is possible that under pressure from human rights the legislative proposal to come to a better arrangement for non-pecuniary losses will be put on the agenda of the legislator again.
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Undoubtedly, the influence of insurers on tort law in the Netherlands will remain large. We already referred many times to the discussion concerning the introduction of a first party insurance for labour-related damage. This would have important consequences for the scope of employers’ liability. The introduction of such an insurance scheme may effectively seriously limit the scope of employers’ liability. Also as far as the financial compensation of victims is concerned, one can be sure that problems of insurability will have an important bearing on evolutions in the area of tort law as well. The more problems insurers see in covering financial consequences of catastrophes, the larger the call on liability of supervisory authorities may be.
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In other words, there will undoubtedly also again be interesting evolutions in the area of tort law in the Netherlands in 2007, some of which may be triggered by the insurance phenomenon.
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This has for instance been argued by J.M. Beer, Ars Aequi 2006, 259 ff.
XVII. Norway Bjarte Askeland
A. LEGISLATION There was no relevant new legislation in 2006.
1
B. CASES 1. Norges Høyesterett (Hr) 2 June 2006, Retstidende (Rt., Periodical Reporting Supreme Court Cases) 2006, 691: Adequacy, Preventive Expenses a) Brief Summary of the Facts
Two trains collided near the small town of Lillestrøm. Two carriages containing propane liquid were damaged and the propane leaked out and evaporated into highly explosive propane gas. For some time there was a gas fire burning, and for several days (4 and a half days and nights) there was a great danger of an explosion that probably would have struck the centre of Lillestrøm. Eventually the firemen gained control of the leakage and the danger was removed without any explosion occurring. In fear of a possible explosion, a great many private persons evacuated the centre of Lillestrøm on the first day and stayed at hotels at a safe distance from the railway tracks. Moreover, many business enterprises within the centre of Lillestrøm had to close down during the time period of the explosion risk. Both the business companies and the private persons were firstly compensated by NSB (Norges statsbaner, the Norwegian Railways) who accepted liability according to the strict liability clause in jernbaneansvarsloven 10 June 1977 no. 73 (the Norwegian Act on Liability for Railway Activity, jernbaneansvarsl.) § 9. NSB’s liability insurer, Vesta Forsikring AS (hereafter Vesta), did not agree that NSB in fact was liable for the damage, and they refused to pay the insurance sum. Consequently NSB sued Vesta claiming that NSB (in fact the company itself) was liable according to Norwegian tort law and that Vesta therefore was obliged to refund NSB according to the insurance contract.
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b) Judgment of the Court
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The court found that NSB was subject to strict liability according to jernbaneansvarsl. § 9. The main question for the court was, however, whether the expenses and losses passed the test of adequacy. In this respect the court had to investigate whether the facts of the case fitted the principles that outline the Norwegian adequacy test in similar cases. According to these cases, the damage has to be foreseeable and the third party’s damaged interest has to be “concrete and closely connected” to the good that is directly damaged, in casu the propane gas. The court found that all the claims passed the test and that Vesta, accordingly, was obligated to pay the insurance sum covering the loss. They also found that NSB was liable to both the private persons who had incurred expenses connected to the evacuation and to the business enterprises which had suffered a loss of income. The leading argument was that the losses were naturally connected to the damage to the gas. (“Damage to the gas” is a peculiar construction chosen by the Supreme Court to make the facts fit the existing doctrine). This viewpoint was reinforced by emphasizing that the losses suffered by third parties would qualify for compensation had the gas exploded. Consequently the costs and losses connected to the evacuation in order to prevent damage from an explosion could not be regarded as too remote for compensation. c) Commentary
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This case actually concerns preventive expenses, a head of damage that neither has a clear position nor tradition under Norwegian tort law. For this reason the grounds of the decision are tied up in an adequacy test that actually does not capture the special nature of the case. Over the years there has been a string of cases where the Supreme Court has been reluctant to compensate the third party who has suffered a purely economic loss as a consequence of a physical damage to another person or a thing belonging to another person.1 The decision in the Lillestrøm case does not fit in very well with these cases and leaves some questions open.
5
A special factual circumstance of the case was that many people had to evacuate because there was a high risk of explosion and subsequent damage. In other countries, as well as in the Principles of European Tort Law (PETL) art. 2:104, such a situation in itself may qualify for compensation independent of any adequacy test. The case fits very well with the concept of “preventive expenses” as a special head of damage.2 Hence there is, on the European level, a doctrinal framework that more precisely captures the special nature of the case than the Norwegian doctrine of “concrete and closely connected interest” does. The Court reaches a sound decision, but the reasoning may cause some confusion in the future. It would have been better if the Supreme Court had paid attention to the solutions to similar situations in other European countries. This is a point 1 2
See inter alia Rt. 1973, 1268; Rt. 2004, 1816. See European Group on Tort Law, Principles of European Tort Law, Text and Commentary (2005) 37 f.
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where the Norwegian doctrine definitely would have gained from adopting European soft law.3 2. Hr, 1 June 2006, Rt. 2006, 684: Damages a) Brief Summary of the Facts
A machine worker suffered from the ear disease, tinnitus. Gradually over time, this illness led to him being totally incapable of earning an income. He applied for workmen’s compensation through the general compensation scheme enacted in Yrkesskadeforsikringsloven (the Norwegian Act on Insurance for Damage at Work, ysfl.) 16. June 1989 no. 65. The insurance company denied payment, pointing to the fact that the injury had occurred before ysfl. came into force. The machine worker then wanted to sue the insurance company. Before he managed to file a lawsuit he was, however, involved in a traffic accident in which he sadly perished. His wife subsequently filed the lawsuit, claiming compensation for loss of income.
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b) Judgment of the Court
The Court found that there could be no compensation for loss of income as long as the claimant had died before the courts had decided his case or the case had been settled through agreement between tortfeasor/insurer and the claimant. The Court put weight on some statements in the preparatory works of Skadeserstatningsloven (the Norwegian Act on Compensation for Damage, skl.) 13 June 1969 no. 26 and some opinions expressed in tort law literature. The Court found that the question of insurance payment must be resolved in the same way as the question would have been solved by general tort law rules.
7
c) Commentary
The solution seems well-founded. It is hard to see why the wife of the deceased should receive the benefit of an insurance payment for a loss of income that actually never materialized because the insured person died. The fact that she would have had this financial gain had the case been settled before he died does not affect the rationale of the chosen solution.
8
In principle there is, however, one problem attached to the result: The tortfeasor or the insurer responsible for paying the award may benefit from not settling the case before a claimant dies. The chosen solution is far from an incentive to settle the case, and one might fear that tortfeasors or insurance companies may speculate in not settling, hoping that the claim will disappear as a result of the victim’s death. The Court ruling may make it tempting to postpone the settlement especially for the workmen’s compensation insurers. In this standardised insurance scheme the assessment does not reflect the fact that the insured may not live for long after he or she has received the insurance
9
3
See B. Askeland, “Principles of European Tort Law” og norsk erstatningsrett; G. Cordero Moss/J. Giertsen/T. Frantzen (eds.), “Rett og toleranse”, Festskrift til Helge Johan Thue (2007) 24 ff.
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money. From an ethical point of view, tortfeasors and insurers clearly should not take advantage of this effect of the law. Hopefully tortfeasors or insurers will possess the sufficient moral integrity on this point. 3. Hr, 28 November 2006, Rt. 2006, 1519: Liability for Public Entities a) Brief Summary of the Facts
10
The Norwegian oil company, Statoil, established in 2001 a fund for supporting former divers who had been performing diving operations on the Norwegian continental shelf. Divers who by spring 2002 were incapable of paid employment were to receive NKR 750,000, approximately € 95,000, while divers who only had reduced working capacity would receive less money proportionate to their lost ability of earning income. A diver born in 1942 applied for compensation ultimo January 2002 (probably because he anticipated that he would be declared incapable of employment). Because of his illness he was told a few days later that his certificate for diving would not be renewed, and he was declared unfit for work. He remained ill until April 2002, when he applied for social security for permanent incapacity for paid employment. A declaration of permanent incapacity would qualify him for the highest award of NKR 750,000 provided that the declaration was given before the last meeting of the committee which decided which divers should receive compensation and how much they would receive. At that time the committee was approaching the end of its work, and consequently the last meeting was near.
11
Being aware of this, the diver made clear to the local social security office on several occasions that the decision regarding his permanent incapacity to work was urgent. The case worker that handled his case did, however, not communicate the information on the urgency to the doctor in charge of the case, in spite of the fact that his superior officer had twice explicitly emphasised the urgency. Since the doctor did not know about the urgency, he arrived at his decision too late. The Statoil committee had their last meeting for treating applications ultimo May, while the result of the application for social security was concluded only as late as primo June. Because of this the former diver suffered a loss of approx. NKR 435,000, approx. € 54,000. He claimed compensation from the state. He held that the state was responsible for the culpability of the case worker. b) Judgment of the Court
12
The Supreme Court found that the state was liable according to skl. § 2-1, the Norwegian rule on respondeat superior. The case worker’s omission to inform the doctor about the urgency of the case while knowing the importance of the decision amounted to negligence. In this connection the Court stated that the diver had rightful expectations of better performance; see the last part of skl. § 2-1: This provision reads that the question of liability must be decided in the light of what the claimant “reasonably could expect” from the public service.
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c) Commentary
The decision is interesting because, until this case, it was not clear that a citizen has a right to prompt decisions. The period of time between application and result was less than four months, and that is in itself not exceptional. It was, therefore, the information regarding the claimant’s personal and very special need for a particularly prompt decision that constituted the unusual duty of service from the social security office. There is something peculiar in the fact that Statoil, by making their support dependent on the decision made by the social security office, in fact made the state liable for the same amount that Statoil would have been obliged to pay had the social security office worked faster or more effectively. The reasoning seems to be that the knowledge of the case worker made the loss connected to the supporting scheme an adequate loss.
13
The decision reflects a rather high level of responsibility for public entities, something that fits well with Norwegian welfare state ambitions. One might, however, add that there surely must be limits to the possibility of claiming compensation for this kind of loss. After all, the loss stems to a great extent from arrangements and expectations within the claimant’s own sphere.
14
4. Hr, 8 September 2006, Rt. 2006, 1099: Motor Vehicle Insurance/ Contributory Negligence a) Brief Summary of the Facts
A young man was arrested by the police on suspicion of driving while intoxicated. The young man’s uncle saw the police car outside the young man’s flat, and he immediately called the young man’s parents. The parents immediately drove to their son’s flat. The police car had, in the meantime, already left for the police station with the arrested man. Some time into their trip back, the policemen had decided to turn and drive back to the flat to lock the flat door properly. When the police car arrived outside the flat with the young man in the back seat, his mother approached the car. Upon seeing his mother, the young man started a fight with one of the two policemen. The other policeman, who was driving the car, told the mother to stay away. In spite of this, she remained standing by the back door, with one hand on the top of the car and the other in the door handle. The young man now became violent, and the policeman who was driving therefore chose to drive slowly away in order to create distance between the car and the mother and to handcuff the young arrestant. Because of this manoeuvre, the mother was hanging on to the car for some metres before she let go.
15
The incident caused physical injuries to the mother. She suffered from a stretching of the nerves in her neck and arm. When this damage arose, in addition to other diseases she suffered from, she became 100% incapable of paid employment. She claimed compensation for loss of earning capacity from the traffic insurer.
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b) Judgment of the Court
17
The Court applied the Norwegian Act on Motor Vehicle Insurance, Lov om ansvar for skade som motorvogner gjer, 4 February 1961, bal. The provision in § 4 of the said act establishes strict liability for damage caused by motor vehicles. The compensation may however be reduced or totally annulled according to the provision in § 7 whenever the claimant negligently or intentionally has contributed to the damage. The Court found that the mother had contributed substantially to the damage by her own blameworthy behaviour. The fact that the mother did not comply with the policeman’s order to stay away was emphasised. The Court also underlined the fact that the mother had hindered the policemen in the performance of their duties. Because of this, she herself ought to bear the economic consequences of her behaviour. c) Commentary
18
The case concerns a citizen who does not obey orders from the police. Because of this, she is injured in a manner which involves the policemen’s rather adequate use of a motor vehicle. Such a situation falls outside the core of the traffic insurance. The injured person is the dominant cause of her own damage. The rules allowing for a reduction to zero compensation is therefore rightly applied in this case. This must be so in spite of the ECJ decision, Candolin et al. v. Pohjola and Ruokoranta,4 which apparently puts restrictions on the Court’s ability to reduce compensation in order to secure the effectiveness of the Motor Vehicle Insurance Directives.5 The Candolin case featured gross negligence by the injured party, but the injured party in this case acted even more blameworthy. 5. Hr, 21 June 2006, Rt. 2006, 799: Infringement of Personality Rights a) Brief Summary of the Facts
19
The Norwegian Prime Minister and the Minister of Health visited a newly opened department in a hospital. This event was covered by seven journalists. A patient (A) in the hospital was asked to participate in a short TV-recording from the hospital, where he was to shake hands with the Prime Minister. The patient consented to this, not knowing that the character of his disease (heritable colon cancer) would be revealed to the journalists and the Ministers during their visit. The nature of his illness was revealed by the chief surgeon. The patient was, at the time of his consent, still dizzy as a result of an operation that he had undergone two days earlier. Because of this he did not fully comprehend the details in the plan for the TV-recording he was asked to be a part of. During the Court proceedings he stated that he would never have consented to participating had he known the full context and content of the TV-recording. On top of it all, a television reporter made a special point of the fact that insurance companies might 4 5
C-537/03, Candolin et al. v. Pohjola and Ruokoranta [2005] ECR I-5745. It is held that the Candolin case has far-reaching consequences for the national tort law regimes, see B.A. Koch, European Union, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2005 (2006) 593 ff., 599.
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not accept insurance customers with heritable colon cancer, and interviewed A on this subject. Being somewhat startled by the sudden interview while lying in bed, the patient answered the questions. Only afterwards did he react to the fact that the television reporter knew the nature of his illness. b) Judgment of the Court
The Court found that the chief surgeon had violated professional confidentiality by revealing the character of the illness to the journalists and Ministers. This was a breach of legeloven (Lov om Leger 13 June 1980, the Norwegian Act on Medical Doctors, legel. (Now Lov om helsepersonell 2 July 1999 no. 64)) § 31, § 32. Under the circumstances the consent was not qualified as suspending the professional confidentiality according to legel. § 32. The question for the Court was then whether the act of the chief surgeon amounted to a violation of the special personality right provision in the Norwegian Compensation Act § 3–6, which reads that an actor who has infringed “privatlivets fred” – “the peace of privacy” – must compensate the victim a sum decided by the Court’s discretion. By interpreting the provision in light of similar provisions within the Norwegian Penal Code and the practice connected to the Penal Code, the Court found that the requisite of compensation was met. The compensation was due also from the mere disclosure of the illness to the journalists and Ministers. The fact that the television reporter chose to broadcast the nature of the disease was regarded as an adequate turn of events once the information was revealed to the journalists and Ministers. The Court mentioned that the patient’s own contribution to the revelation of his illness would normally have disqualified him for compensation. In view of the special circumstances, namely the patient’s reduced medical condition at the time of his contribution, the Court disregarded this element in the chain of events. The Supreme Court awarded NKR 50,000 (approx. € 6,000) in compensation.
20
c) Commentary
The case confirms that personality rights are guarded by tort law rules. It seems reasonable that revealing information on grave diseases without a proper, valid consent is regarded a tortious act. The case is consistent with the general willingness to recognise values connected to personality rights.
21
C. LITERATURE 1. Bent Liisberg, Erstatningsansvaret for offentlig servicevirksomhet (Kritikk av en juridisk vranglære) (Liability for Public Service Activity/A Critique of an Erroneous Doctrine) (Fagbokforlaget, Bergen 2005) 692 pp. This book deals with the liability of public entities for failed service to the citizen. Under Norwegian law, a special rule governing the question of state liability and liability for other public entities such as local authorities, county councils or municipalities has been established. This rule has prevailed for
22
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nearly 100 years. This special rule applies when public entities engage in an activity regarding control, supervision, service or assistance. When performing such activities, the actors that act on behalf of the public entities are subject to a lenient standard of conduct. The public entity will not be liable unless individuals have acted in a manner which to a substantial degree departs from the standard prudent behaviour. The content of this rule is, in a nutshell, that the public bodies in the performance of the said activities are not liable for ordinary negligence; a more qualified level of negligence is required.6 The rationale of this rule is mainly that too rigid liability rules will lower the willingness of public bodies to engage in activities for the benefit of the citizen.
23
The book elaborates thoroughly the positive texts that allegedly support this rule. Both Supreme Court judgments and theoretical propositions regarding this special rule are scrutinized. By means of an unusual close reading of the various texts, the author detects some inconsistencies between the various texts. The concepts applied and the approaches taken by different judges and theorists leave it open to discussion whether there really is sufficient legal basis for retaining the notion of a special lenient standard. The author combines this result of his research with argumentation that might justify that the culpa standard for public entities rather should be stricter than more lenient than the ordinary culpa standard.
24
The book is unorthodox in its approach especially because the author claims that his real ambition is not to solve the question of liability for public entities. His ambition is merely to show that the doctrine of a lenient standard has neither a sufficient legal basis nor rational grounds. This approach leaves the author’s focus rather narrow. In this respect I will particularily mention that the author is not at all concerned with international or European discussions regarding state liability. Even though Norway is connected to the European Union through the EEA agreement, the book contains very little on the question of how the EU connection influences the traditional doctrines regarding public liability. I fear that some readers of the book will miss the mentioned perspectives on the question of liability for public entities. 2. Bjarte Askeland, Tapsfordeling og regress ved erstatningsoppgjør (Loss Allocation and Right of Recourse in Tort Law) (Fagbokforlaget, Bergen 2006) 313 pp.
25
This book presents two recourse possibilities within Norwegian tort law, namely indemnity (subrogation) and contribution, and the book is divided into these two subjects. In the part on subrogation, the author analyses situations where a “third party”, due to some kind of obligation, covers the whole or parts of the loss that a plaintiff otherwise would have been entitled to have compensated by a responsible tortfeasor. The legal order can meet this situation by three modes of regulation. Firstly, the rules may prescribe that the third party may have a right to recourse, so that the tortfeasor eventually has to bear the loss, i.e. subrogation. Secondly, cumulation of the third party’s payment and the tortfeasor’s payment 6
See P. Lødrup, Lærebok i erstatningsrett (Textbook on Tort law) (5th ed. 2005) 161–166 and N. Nygaard, Skade og ansvar (Damage and liability) (6th ed. 2007) 239–245.
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is sometimes an alternative. This way of allowing the claimant to gain collateral benefits is a solution often preferred when a first party insurance has covered a personal injury. The last mode of regulation is reduction: The tortfeasor’s sum of payment may be reduced by the payment from the third party, All three models of allocating loss play an important role in the puzzle of compensating personal injuries.7 The author elaborates on the underlying principles that explain why the solutions alternate between subrogation, cumulation and reduction. The choice between the three models is the most complicated regarding personal injury, whereas the solution of subrogation prevails when it comes to damage to things and when pure economic loss is concerned.
26
The other main part of the book concerns the question of contribution in case of solidary liability. This part starts with a presentation of the historical development concerning damage caused by more than one tortfeasor under Norwegian law, with a special view to the problem of relative contribution between joint tortfeasors. The author puts forward the theory that the different normative structures that constitute solidary liability play a part also when the extent of the contribution has been decided. Hence there are, for example, better reasons for dividing the final loss equally per head when the tortfeasors have acted in a common enterprise (“Mittäterschaft”) than where they merely have produced the damage as several concurrent tortfeasors (“Nebentäterschaft”). Sometimes the reason for the solidary liability is such that it would be appropriate to let one of the responsible tortfeasors bear 100% of the loss. This is, for example, the case where a landowner in case of damage to his neighbour is identified with his independant contractor.8
27
The introductory chapter of the book comprises a presentation of the two dominant ideas within western tort law, namely corrective and distributive justice. The dogmatic problems adressed in the book are elaborated on in light of these ideas. One proposition is that the Scandinavian system, based on an active welfare state with relatively strong social security, in principle is a product of the ideas of distributive justice. Another point that might interest a foreign reader is that the author presents a new theoretical approach to tort law issues named “the chronology of tort law”. The profound idea is that every fragment of the normative framework of tort law adresses a certain point in a chronological chain of events on the factual level from the time when the first risk appears until the final distribution of the loss is decided. By closer attention to the chronological aspect of tort law, one may detect subtle nuances that are relevant to the “hard cases” within the topic. One exploration of this kind is the observation that the subtraction of social security benefits from the personal injury claim must be done only after one has applied the rule of compensatio
28
7
8
The book by R. Lewis, Deducting benefits from damages for personal injury (1999) has a resembling approach to English tort law. The division into three allocation models is a structure that occurs in many jurisdictions of European tort law, cf. e.g. W.F.M. von Bieberstein, Reflexschaden und Regressrechte (1967) 216 f. (Germany) and A. Maurer, Kumulation und Subrogation in der Sozial- und Privatversicherung (1975) 13 ff. (Switzerland). Cf. Rettens Gang (The March of the Law, RG) 1993, 760 (Periodical reporting cases from lower courts).
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lucri cum damno. By contrast one has in tort law theory so far taken the view that the subtraction of social security benefit is more or less an application of the rule of compensatio lucri cum damno. 3. Erling Hjelmeng, Revisors erstatningsansvar (en analyse av ansvarsnormen) (Auditors’ Liability/An Analysis of the Liability Norm) (Fagbokforlaget, Bergen 2006) 156 pp.
29
This book analyses the liability of auditors with a strong focus on the special culpa standard for auditors. This topic is particularly interesting from an academic point of view because it combines several important, general discussions both within Norwegian and European tort law. The question of which culpa standard to apply when it comes to professional services is of course of great interest and likewise the question of liability for pure economic loss. Under Norwegian law it has for a long time been an open question whether the culpa standard is the same when applied to pure economic loss as when applied to physical damage. The subject also concerns a type of liability that can be seen as both contractual and delictual.
30
The author meets these challenges in a rather bold and refreshing way. His device is to divide the culpa standard into two dimensions; one dimension of duty and one dimension of rights. By this division the author provides himself with a new tool for deciding whether a pure economic loss qualifies for compensation or not. This tool is applied to the special problem of auditors’ liability.
31
The author’s account of the dimension of rights connects to the discussion of the scope of tort law protection. Hence the normative content of the PETL chapter on damage (PETL art. 2:101 and art. 2:102) is projected into the culpa standard. Moreover, the book also discusses a line of cases connected to the question of proximate cause/adequacy as a part of the rights dimension. The author claims that the “protecting properties” of the culpa rule is highly influenced by the dominating principle of adequacy under Norwegian law, the demand that the damaging activity strikes “a concrete and closely connected interest”.9 This approach may be realistic in one way, and I welcome the willingness to innovate in a classic field. Still, in my opinion, how much there is to gain from the new approach remains an open question. A theoretical construction that emphasises that the delimitation of damage, the principle of adequacy and the culpa rule actually are parts of the same question regarding the claimant’s rights may at least cause some didactical problems.
32
The dimension of duty seems to follow more traditional paths. The question of liability in this area is of course to a very high degree dominated by written and unwritten standards of professional performance. These standards constitute the duty dimension in a rather straightforward way. The presentation of a rather complex normative structure consisting of directives, national rules and professional standards is, however, useful and enlightening. 9
See supra no. 3.
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Although there may be disagreement regarding the value of the author’s new approach to the question of culpa, the book is doubtlessly valuable in its analysis both on the level of general tort law and on the level of the special legal framework surrounding auditors. The author has good knowledge of international law, and the text flows elegantly between interesting comparative perspectives and perspectives generated by the influence of EC law. Apart from its good academic qualities, the book will probably also be very useful to the auditor profession within Norway and the other Nordic countries.
33
4. Endre Stavang, Det erstatningsrettslige skillet mellom økonomisk og ikke-økonomisk tap (The Borderline Between Pecuniary and Non-Pecuniary Loss Within Tort Law) Tidsskrift for Erstatningsrett (Periodical on Tort Law, TfE) 2006, 163–193 The subject of this article is pecuniary loss as a requisite for compensation. The author argues that the delimitation of the requisite must be made in light of what is the best solution from the law and economics perspectives. The author holds that Norwegian and Nordic theory historically has put too little weight on this aspect and that the general development of society now creates a demand for awareness of the economic consequences of the scope of pecuniary loss. It is emphasised that tort law is trying to solve two problems – compensating victims and preventing future damage – with one solution. According to the author, the second aim should be of greater importance to the discussions on pecuniary loss as a requisite for compensation.
34
The author analyses six different types of damage in the grey zone between pecuniary and non-pecuniary loss, for instance loss connected to the frustrated use of things, loss of leisure and loss of a child. In this way the author tries to demonstrate how the law and economics approach provides answers regarding delimitation of what is qualified as economic loss. For example: One type of loss is the parent’s loss of a child. Stavang analyzes whether the potential claimant, in casu the parent, is likely to cover his risk by insurance and whether the potential tortfeasor or victim (in casu the child/parent) is inclined to act to avoid damage. He also analyses the complications connected to the assessment of non-pecuniary loss. The fact that it is difficult to estimate one type of damage may, in his opinion, lead to the result that it should not qualify as damage. Finally the author discusses how one should include ideas of justice and reasonableness in the dogmatic task of drawing a line between pecuniary and nonpecuniary loss. An articulated view is that an emphasis on personal opinions of what is reasonable or just may contradict the aim of wealth maximisation. The last part of the article concerns quite profound theoretical questions, for instance whether the legal theorist should listen to his own subjective opinion or try to grasp the common opinion. It seems slightly peculiar that these general questions are addressed in a few words and without any reference to the vast general legal theory on the subject.10
35
10
Among a great number of theoretical works on the subject, one might for example mention R. Dworkin, Taking rights seriously (1977) chapter IV “Hard cases” 123 ff.
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The analysis is nevertheless in one respect fascinating as the author invents arguments that are new at least to the Norwegian tort law discussions within the subject. On the other hand, one might object to the rather theoretical approach in some of the points made. Moreover, the approach is very instrumentalistic. The dominating question is how tort law rules may bring the highest net wealth or happiness to society. The law and economics approach is, without a doubt, relevant within legal dogmatics and the approach is refreshing from an academic point of view. It would, however, in my opinion, be fair to say that the article puts more traditional dogmatic arguments in the shadow.11 If one in real life cases were to decide whether the six types of loss should be compensated, more weight would probably be put on questions of analogy and consistency of the tort law system. But then again: The author’s articulated agenda is that the legal method when solving hard cases within tort law should feature a greater emphasis on arguments provided by the law and economics approach. 5. Bjarte Askeland, Spenninger mellom norsk og europeisk erstatningsrett (Tensions Between Norwegian and European Tort Law) Nordisk Forsikringstidsskrift (Nordic Periodical on Insurance Law, NFT) 2006, 127–136
37
This article provides a survey of legal questions where European tort law influences Norwegian tort law. With the phrase “European tort law” the author refers to a rather multifaceted set of principles and rules that have been generated either by the European Union or by academic groups purporting to harmonise European law within the tort law area. Influence comes through several channels, particularly EU directives, European soft law principles, the mere existence of a common commercial market and the fact that legal thinking within the field of private law is highly influenced by “competition rationality”. Combined with the private law’s inherent gravitation towards consistency, Norwegian tort law inevitably will be driven towards solutions that represent harmonisation with European solutions. The author presents a number of concrete examples of this development.
38
The article pays particular attention to the European Group on Tort Law’s propositions on proportionate liability, cf. PETL art. 3.103-3.106. It is held that the idea of proportionate liability contradicts the Norwegian doctrinal traditions to such a great extent that harmonisation on this point is nearly inconceivable. In other areas there will, however, probably be acceptable solutions that are consistent with Europeans propositions. The author is of the opinion that such harmonisation in the future is likely to emerge, however only in small steps.
11
For the Scandinavian discussion on this important matter Mårten Schultz’s book on causality in tort law promotes an exact opposite view. One of his main points is that the law and economics approach does not pay sufficient respect to the immanent causal structures of tort law, see M. Schultz, Kausalitet (Studier i skadeståndsrätttslig argumentation) (Causality/Studies on tort law argumentation) (2007) 104 ff.
XVIII. Poland Ewa Bagińska
A. LEGISLATION 1. Bill of 13 July 2006 on the Revision of the Civil Code (enacted by Parliament, but vetoed by the President) – Prescription of Tort Claims The new version of the regulation of the prescription of tort claims (art. 442 Kodeks cywilny, KC) would extend the time of prescription from ten to twenty years in personal injury cases. In this respect the new provisions would recall the Code of Obligations of 1933 (modelled after the Swiss Code of Obligations – art. 60).
1
The revised art. 442 KC would read as follows: A claim for redress of the damage caused by a tort expires after the lapse of three years from the day on which the injured person learned about it and about the person obliged to redress it. However, in any case the claim expires after the lapse of ten years from the day on which the event that caused the damage occurred, or after the lapse of twenty years if the damage resulted from personal injury. If the damage was due to a crime or misdemeanour, the claim for its redress expires after twenty years from the day on which that crime or misdemeanour was committed regardless of when the person who suffered the damage learned about it and about the person obliged to redress it.
2
The newly added § 3 would provide: “The claims of a minor for redress of the damage stemming from personal injury may not expire earlier than after the lapse of two years from the day of her/his maturity”.
3
The bill which had passed through Parliament was vetoed by the Polish President at the end of August 2006. Thus, the law never came into force. However, in the judgment of 1 September 2006, SK 14/05 (reported below) the Constitutional Tribunal repealed art. 442 § 1 sent. 2 KC because of its unconstitutionality. A new bill is under preparation.
4
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B. CASES 1. Sąd Najwyższy (Polish Supreme Court, SN) 14 January 2005, III CK 193/04, OSP 7-8/2006, item 89: Hypothetical Causation, Credit Enforcement Proceedings a) Brief Summary of the Facts
5
The plaintiff had concluded three contracts for credit with the defendant bank. After he had defaulted with respect to all of them, the bank issued three “bank enforcement titles”. One of the titles was provided with a legally required “execution stamp”, issued by a court, and the seizure of assets followed. After having satisfied the first debt in whole, the executor, acting upon the defendant’s motion, continued the enforcement of the other two titles, although they had not been confirmed by the court. The execution did not result in full satisfaction. The plaintiff sued for damages in tort claiming wrongful and negligent conduct of the bank.
6
Both the trial and the appellate court dismissed the suit. According to the courts, although the bank enforced the contracts in violation of the law, it caused no loss to the plaintiff, but rather a reduction of his debts. Hence, the courts determined that the defendant bank could not be held liable for a tort (art. 415 KC). At the time of delivery of the appellate judgment the plaintiff was still in default. b) Judgment of the Court
7
The Supreme Court finds the grounds for the application of art. 415 KC (the general clause of liability for fault). First of all, pursuant to the rules of civil procedure, the sums obtained in illegal execution proceedings and transferred by an executor to a creditor may not reduce or discharge the debts of a debtor. Such result is limited only to a lawful execution. In this case it would be so if the banking titles had been formally confirmed by a court.
8
The key problem relates to hypothetical causation. The Court states that, in this case, the possibility of a legal execution of the two remaining debts by the defendant should be treated as causa superveniens. The Court identifies and analyzes two views regarding this issue. According to the traditional and dominant opinion, widely accepted by the courts, a wrongdoer is not allowed to defend himself against a claim for damages by pointing at a hypothetical cause of the damage. This means that a court should in principle disregard the subsequent event that would have inflicted the harm anyway. The opposite position, formulated recently in the doctrine and based primarily on comparative studies, suggests that the general rule should be reversed. It follows from the differentiation theory that it is necessary to take account of certain hypothetical causes when assessing the damage. Hence, if a hypothetical state of the victim’s patrimony is one of the factors taken into account in the assessment of the loss, then all the circumstances subsequent to the event triggering liability that might or have influenced this state should be considered. Causa superveniens
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belongs to those “circumstances”. However, in some exceptional situations a court should have competence to disregard the hypothetical cause. The first exception is when a third person would be liable for that cause. Second, when the hypothetical cause would be a legal conduct of the person liable whereas her actual conduct (original cause) violated the legal norms aiming to prevent the plaintiff’s damage. Applying both approaches to the facts of the case, the Supreme Court reaches the same result, namely that the defendant may not take advantage of a defence that his subsequent legal conduct would have caused the same loss.
9
c) Commentary
The Polish jurisprudence has so far rejected the concept of hypothetical causation. The Supreme Court has consistently held that it is unimportant whether a given result would have followed anyway from other subsequent events.1 A person obliged to redress damage is released from this obligation if the cause imputed to her ceased to exist. If the cause still exists, any event causing a new harm in addition to the existing harm bears no significance for the determination whether the primary duty to redress damage has extinguished.2 The commented decision shows a different approach. It remains to be seen, however, whether this new approach, which eventually did not lead the Court to a different conclusion than under the dominant view, will find some further support in the legal writing. The doctrinal arguments invoked by the Court have been offered by J. Jastrzębski in his article reported in Yearbook 2003.3
10
This decision is another example coming from the banking sector where there is a clear breach of contract, but the Court finds that the bank’s conduct should also be qualified as a tort4. The error of the plaintiff, or his lawyer, was not to sue the executor for illegal execution proceedings. The execution organ (an execution officer or a court) is responsible for checking the formal requirements of the title presented by the creditor initiating the execution. The conduct of the executor was evidently unlawful and liability for the damage should be borne by him and the State Treasury which in such cases answers jointly and severally.5 No proof of fault is required.
11
Moreover, there is a problem of the extent of damage. Except for the obvious element, the execution cost, I wonder whether the sums seized during execu-
12
1 2
3
4
5
SN 16 February 1965, I PR 330/64, Orzecznictwo Sądów Polskich (OSN) 1965/11, at 194. SN 28 February 1974, II PR 61/74, Orzecznictwo Sądów Polskich i Komisji Arbitrazowych (OSPiKA) 1974/9, at 195. See J. Jastrzębski, O wyprzedzającej przyczynowości, Kwartalnik Prawa Prywatnego (KPP) 3/2003, 611, reported in E. Bagińska, Poland, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2003 (2004) no. 61, J. Jastrzębski, Note to this judgment, Orzecznictwo Sądów Polskich (OSP) 7–8/2006, item 89. SN 20 May 2005, reported in E. Bagińska, Poland, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2005 (2006) no. 54. Art. 23 Law of 1997 on Court Executors and Execution, Journal of Laws (Dz.U.) 1997, no. 133, item 882 with later amendments.
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tion and transferred to the creditor should be seen as a loss to the plaintiff. Therefore, I would rather incline to the position taken by the Court of Appeals. 2. SN Resolution of the Civil Chamber, 24 November 2005, III CZP 82/05, OSP 9/2006, item 1066 = OSN 9/2006, item 148: Normative Omission, Causation a) Brief Summary of the Facts
13
The plaintiff claims compensation for the unlawful nationalization of a printing house after World War II. The basis for the nationalization decision was the Act of 1946 on Nationalization of Major Economic Sectors7. The Act provided for the principle and forms of compensation to entrepreneurs, leaving the procedure, the formulation of special commissions and the detailed rules of assessing compensation to two regulations (art. 3 and 7 of the Act). However, the government failed to ever issue the regulations, which made it impossible for entrepreneurs to obtain any remuneration for the nationalized enterprises.
14
One of the bases of the cause of action is normative omission. The Court of Appeals requests the Supreme Court to provide a preliminary ruling regarding two questions:
15
1) The revised provisions of the Civil Code introduced the possibility of claiming compensation for damage inflicted through an illegal normative (legislative) omission (art. 417¹ § 4 KC8). The new law applies to the facts and legal situations occurring after its entry into force (1 September 2004). Can it be applied to the facts of the case, where the duty to issue regulations has not been fulfilled until that date and the omission still lasts, and
16
2) If the answer to the above question is affirmative, when did the duty to issue the regulations in question arise and should damages be assessed according to the rules provided for in the Act of 1946? b) Judgment of the Court
17
First, the Supreme Court replies to the first part of the second question. The statutory norm referring to further regulations did not state a deadline for the promulgation of the acts. Conceding that the lack of the deadline means that any governmental regulation necessary to execute a statute should be issued without undue delay, the Court states that the regulations in question would have come into force in 1946 or 1947, as did other regulations aiming to execute the same statute. 6 7 8
Note by L. Bosek, OSP 9/2006, 497. Journal of Laws of 1946, no. 3, item 17 with later amendments. “If the damage resulted from omission to issue a legal act, where there is a legal duty to issue such act, the court hearing the claims for compensation determines the illegality of the omission”.
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The key problem of the case is whether a claim for reparation of the damage incurred by a legislative omission could be brought against the State before 1 September 2004. The Court gives a historical survey of the relevant laws in the period 1918–20049. The analysis of historical, political, social and axiological arguments leads the Court to the following conclusions:
18
– After World War II the State enjoyed immunity, which was supported by the Constitution of 1952 that proclaimed the Parliament the “highest organ of state authority”. Prior to the entry into force of the Polish Constitution of 1997 (17 October 1997), there were no legal grounds for holding the State liable for legislative omissions; such claims were dismissed by the courts which supported the doctrine;
19
– Art. 77 sec. 1 of the Constitution of 1997, which substantially modified the situation of the injured, does not exempt the legislature from liability for omissions. However, the principle of lex retro non agit prevents the application of art. 77 sec. 1 in an action for damages where the event triggering the damage occurred before the Constitution entered into force. Moreover, following the interpretation that enjoys increasing support in case law and doctrine, the Court holds that, in the said situations, a cause of action may not be based directly and solely on the constitutional norm. The current regulation expressed in art. 417¹ § 4 KC and the transitional provision of art. 5 of the Act of 17 June 2004 endorses this interpretation.
20
c) Commentary
It has always been highly arguable whether the liability for normative omission could be based on art. 77 sec. 1 of the Constitution, whether applied alone or in conjunction with art. 417 KC. The decision is quite convincing, although, obviously, we are facing a situation of grave injustice and of an arrogant, wrongful conduct of the state authorities. The statutory right to compensation turned out to be illusory because the claims could never be settled. But the Court quite rightly disagrees with some of its previous decisions10 and emphasizes that the wrongs committed by the socialist State should be resolved by the legislature while taking into consideration the values of equal treatment of all persons involved in this very complex problem.
9
10
See E. Bagińska, Odpowiedzialność odszkodowawcza za wykonywanie władzy publicznej (Tort Liability of Public Authorities) (2006) 143 ff., for a recap in English see E. Bagińska, Liability of Public Authorities for Damage to Individuals: Is Article 77 of the Polish Constitution a Model Solution? in: A. Bodnar/M. Kowalski/K. Raible/F. Schorkopf (eds.), The Emerging Constitutional Law of the European Union – German and Polish Perspectives, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 163 (2003) 188 ff. For example, SN 15 May 2000, II CKN 293/00, OSNC 11/2000, item 209, SN 21 November 2003, I CK 323/02, OSN 2004, no. 6, item 103.
21
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Ewa Bagińska
3. SN 13 April 2005, IV CK 648/04, OSN 3/2006, item 54: Compensation to a Third Party in Wrongful Death Cases a) Brief Summary of the Facts
22
There are two plaintiffs in this case: a woman whose partner was killed in a car accident and her 11-year-old son, whom the deceased had been raising as his own child. The defendant is the Polish Traffic Insurance Office.
23
The plaintiff claims damages for the serious mental shock she suffered after the death of her partner. She underwent psychiatric treatment over a long period of time and was briefly hospitalised. Her son demands compensation for the impact that the death has had on his life.
24
The lower courts awarded PLN 30,000 (€ 7,700) for the boy and PLN 15,000 (€ 3,800) for his mother. The legal basis of the decision is art. 446 § 3 KC, pursuant to which the closest members of the family may raise their own compensation claims if the direct victim’s death results in a significant worsening of their living standard. b) Judgment of the Court
25
The Supreme Court dismissed the cassation of the defendant. The lower courts correctly interpreted the notion of family used in art. 446 § 3 KC. “Family” has not been defined in the Civil Code, but it appears there as well as in several other statutes, albeit with a slightly different scope (e.g. in the Family and Guardianship Code, tax law and social aid statutes). In principle, these legal provisions employ the term “family” in order to reach the purpose of a particular statute. Hence, the functional interpretation of art. 446 § 3 KC should be approved of.
26
The meaning of the term “the closest family member” (art. 446 § 3 KC) may be construed on the basis on the following criteria: blood relationship, marriage, adoption, affinity, substitute family and cohabiting. The Court stresses that the primary form of a family, based on a blood relationship, has been shaken in modern society. On the other hand, the role of the economic criterion (cohabitation) has increased. Cohabitation of unmarried couples (konkubinat) has found its permanent place as well as moral approval in contemporaneous society. Its development is linked with the political, economic, social and cultural changes that have taken place in the country.
27
Hence, the Court defines a family as the smallest social group that is internally connected by the feelings of closeness and of personal and economic community, stemming not only from a blood relationship. The broad construction of the term “the closest family member” has been approved by case law since the Code of Obligations of 1933. c) Commentary
28
The judgment should be approved of. The persons related to the deceased, who have been indirectly injured by his death, may demand an annuity (art. 446
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§ 2 KC) or a single-payment indemnity (art. 446 § 3 KC). An annuity may be demanded by a person to whom the deceased had the statutory duty of maintenance (provided for in the Family and Guardianship Code), and the compensation for the significant decline in living standards may be granted to the closest family member. Courts have consistently held that mere grief alone arising from the victim’s death is generally not compensated.11 It is, however, accepted by doctrine and case law that a severe mental trauma (e.g. in the case of the longtime partner’s death) or a feeling of solitude or harm (e.g. loss of a parent by a minor) may increase the degree of the decline in life and therefore should support the award. 4. SN 13 October 2005, I CK 185/05, OSN 7–8/2006, item 133: Damage to Property, Voluntary Restoration by Third Party, Compensatio Lucri Cum Damno a) Brief Summary of the Facts
The plaintiff sued the insurer for compensation of the damage to his car that resulted from a traffic accident. The fault for the collision was attributed to the driver insured by the defendant. The plaintiff’s car was driven by his friend who, after the accident, brought the car to a garage and had it repaired at his own expense. The scope of the damage was not disputable. The insurer denied compensation and the lower courts held that the plaintiff did not prove that a material harm to his patrimony existed at the time of the adjudgment. The plaintiff lodged a cassation.
29
b) Judgment of the Court
The Supreme Court expressed the opposite view regarding the existence of the plaintiff’s damage. A voluntary repair of a car damaged in a traffic accident by a third person at her own expense does not give any grounds to object to the existence of the plaintiff’s economic loss, for which the defendant is liable pursuant to the relevant provisions of the Civil Code (tort rules – art. 415, 436 § 2 KC, insurance contract – 805, 822 KC12). The reparation comprises both elements: real loss and lost profits (art. 361 § 2 KC). The repair of the car by the said person should have been contemplated in the context of the principle of compensatio lucri cum damno.
30
The non-written principle of compensatio lucri cum damno is accepted by doctrine and applied by courts. It is justified by the theory of differentiation. If the damages are to restore the victim to the position he would have been in if the wrong complained of had not been committed, then the court determining the amount of damages should generally take into account the benefits which the victim gains through the damaging event. The Court provides examples of
31
11
12
See E. Bagińska/M. Nesterowicz, Non-Pecuniary Loss under Polish Law, in: W.V.H. Rogers (ed.), Damages for Non-Pecuniary Loss in a Comparative Perspective (2001) 180. The possessor of a car is obliged to take out civil liability insurance for damage arising from traffic accidents (the law of 2003 on compulsory insurance, the Insurance Guarantee Fund and Polish Bureau of Traffic Insurers, Dz.U. no. 124, item 1152).
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Ewa Bagińska
impermissible deductions, such as gains from personal insurance or donations from a benevolent fund created by co-workers.
32
It is widely accepted that voluntary contributions by third parties for the benefit of the victim are not to be taken into account when determining the amount of damages. Such payments do not aim to discharge the debtor’s duty to compensate, but to benefit the injured ex gratia and without acquiring any recourse rights toward the debtor. The deduction may occur only with respect to the gains flowing from the same event. A benevolent contribution is not in a normal causal relation with the event causing the damage, thus the benefit and the damage do not come from the same source (event). By way of exception the doctrine permits the deduction of a payment by a third party when it is expressly agreed that the person pays in order to release the debtor from the obligation to repair damage.
33
Applying this approach, the Court holds that the rule of compensatio lucri cum damno does not apply to this case. The insurer must pay compensation to the injured person each time civil liability attaches to the insured, and within the limits of this liability13. Thus the case is reversed and remanded. c) Commentary
34
The decision is plainly correct and in accord with jurisprudence. The criteria of application of the rule of compensatio lucri cum damno are to be found in the case law. The courts decide on the application of particular factors on a case by case basis. 5. SN Resolution of 7 judges, 26 April 2006, III CZP 125/05, OSN 12/2006, item 194: State Liability for Damage Caused by Enforcement of a Non-Final Taxation Decision Which Was Later Reversed a) Brief Summary of the Facts
35
Since the revision of the Civil Code in 2004, compensation may be claimed if damage arises from a final administrative decision that was reversed in the renewed administrative proceedings or otherwise invalidated (art. 417¹ § 2 KC). The new law applies to the facts and legal situations occurring after its entry into force (1 September 2004). As to the older cases, the courts are bound to interpret (former) art. 417 KC as not to require proof of fault (see the TK judgment of 4 December 2001, SK 18/00, reported in Yearbook 2002). The judicature has been clearly divided14 on the problem of liability for damage caused through a non-final taxation decision in the cases prior to 1 September 2004. The Ombudsman moved for a resolution of this issue. 13
14
See further on the subject M. Nesterowicz/E. Bagińska, Civil liability for automobile accidents in Polish law, in: Essays on Tort, Insurance, Law and Society in Honour of Bill W. Dufwa, vol. II (2006) 833 ff. Comp. SN 6 February 2002, reported in E. Bagińska, Poland, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2002 (2003) no. 23; SN 16 April 2002 reported in Bagińska (fn. 3) no. 30 and SN 19 November 2004, reported in Yearbook 2002, no. 65.
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b) Judgment of the Court
The problem of liability for a decision that was reversed or changed in the higher instance requires an analysis of the former Civil Code rules on state liability and the taxation law. The Court identifies three relevant periods: a “pre-constitutional” period (from 1964 until the entry into force of the 1997 Constitution, i.e. 16 October 1997), the transitional period (from 17 October 1997 until the revision of the Civil Code) and the current regulation i.e. since 1 September 2004.15 In the first period, the old law did not provide for a cause of action against the State if the damage resulted from an enforceable taxation decision of the first instance. The principle of lex retro non agit prevents the application of art. 77 sec. 1 of the Constitution in an action for damages where the event triggering the damage had occurred prior to the Constitution.
36
The key problem here is the interpretation of the law applicable in the transitional period. The analysis of historical, constitutional and axiological arguments leads the Court to the recognition of the liability of the State for the damage inflicted by the issuance and enforcement of a non-final taxation decision which was later reversed.
37
Art. 260 of the Tax Law Code (TC, in force since 1 January 1998)16 allows for compensation only where the damage arises from a final decision, and not from a decision that has been reversed by a higher instance. Similar regulation regarding administrative decisions was found in art. 153 and 160 kodeks postepowania administracyjnego (Code of Administrative Procedure, KPA). In the light of art. 77 sec. 1 of the Constitution, the provisions of art. 260 TC and art. 160 KPA raise serious doubts as to their constitutionality.17 The Court stresses that the liability of public authorities is strict and wide in scope. The Constitution, embodying the concept of the rule of law, shifts the risk of harm suffered by individuals onto society as a whole. The constitutional right to redress may not be hindered by an incomplete statutory regulation, which leaves aside some situations where an individual suffers damage as a result of the activity of a public authority.
38
As to the condition of unlawfulness of the reviewable acts, this Court disagrees with its former decisions requiring a serious breach of law. The procedural rule that taxation decisions are immediately enforceable, regardless of whether an appeal has been filed, casts a proper light on the problem. The enforcement of an unlawful decision may be a source of loss. A simple reimbursement of unduly paid money together with interest may often prove not sufficient to redress the entire harm.
39
Therefore, a third party who was harmed by an unlawful decision should be able to base her cause of action on the provisions of the Civil Code. Because art. 418 KC relating to damage caused by decisions and judgments has been
40
15 16 17
See further on this, Bagińska (fn. 9) 363 ff. Law of 29 August 1997, Dz.U. 1997, no. 137, at 926 as amended. See in particular TK 23 September 2003, K 20/02, reported in Bagińska (fn. 3) no. 7.
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Ewa Bagińska
eliminated from the system by the decision of the TK of 4 December 2001, the only available basis of state liability is art. 417 KC read in conjunction with art. 77 sec. 1 of the Constitution.18 c) Commentary
41
I am of the opinion that in the above situation there are strong legal and public policy arguments for imposing liability on the State. However, the painful rule of an immediate enforcement of non-final taxation decisions should rather be restructured rather than alleviated by civil liability. Following the interpretation that enjoys increasing support in case law and doctrine, the Court permitted a cause of action based directly on art. 417 KC. Nevertheless, the Polish legal system is not a precedent-based system and we should expect that “the series” continues, especially since the courts are flooded with cases of this type. 6. SN 17 December 2004, II CK 300/04, OSP 2/2006, item 20: Seller’s Liability in Tort for a Defective Good a) Brief Summary of the Facts
42
The plaintiff sued the seller (a shop selling orthopaedic products) and the producer (“Scandinavian Orthopaedic Laboratory Sol-Polska”) for compensation of material and non-material damage in the amount of PLN 23,500 (€ 6,000). The loss was inflicted by the use of two defective leg prostheses, which were delivered by the defendant seller and co-paid by the plaintiff and the social benefits office. The orthopaedic devices were ordered to be specifically tailored to the plaintiff’s anatomy. However both of the prostheses were delivered in such a condition that the plaintiff could not use them without enduring serious pain and suffering. The defendant seller did not timely meet his duties under the warranty regime. All the repairs of the prostheses failed to meet the expectations of the plaintiff.
43
The court of first instance held that the seller was in breach of contract and awarded PLN 2,000 (€ 510) as the price refund. It dismissed the remaining claims as well as the suit against the producer (for the lack of privity). The decision was affirmed in the second instance. According to both courts, in Polish law an injured person has no claim for non-material damages, such as for pain and suffering, if the cause of action is placed in the contractual regime of liability. b) Judgment of the Court
44
The Supreme Court confirms the general inadmissibility of claims for nonpecuniary loss in breach of contract cases. However, the lower courts have overlooked that in this case the breach of contract caused personal injury. The plaintiff’s suffering was serious, albeit temporary.
18
See E. Bagińska, Poland, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2001 (2002) 382.
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The Court observes that the conduct of both defendants was wrongful and tortious. The seller was in breach of contract, of patients’ rights and of the moral principles accepted by society (the so-called principles of social co-existence). The Court holds that a seller of a defective orthopaedic device commits a tort when he fails to repair the device in due time and the subsequent attempts to repair the device fail to ensure the required quality, which results in the aggravated physical effort and suffering of the disabled user. As to wrongfulness, the Court stresses that the defendant seller, acting contrary to the expectations of the disabled buyer, impaired the situation of the latter and induced her physical and mental suffering thereby violating not only his contractual obligations but also moral principles.
45
As Polish law recognises the concurrence of the causes of liability,19 the plaintiff’s claim for non-pecuniary loss needs to be evaluated on remand. The claim can be based on art. 445 KC (personal injury) or on art. 19a sec. 1 Act on Medical Care Establishments of 1991 (breach of patient rights).20
46
c) Commentary
Under the current doctrine and case law the concurrence of liabilities plays an important role in seeking compensation for non-pecuniary loss in health care services. For example, a contract with an individually practicing physician (or a private hospital) may trigger his contractual liability towards the patient, but if the patient was harmed, the liability would be (concurrently) tortious since personal injury by itself allows to establish that the obligor committed a tort (art. 415 KC).
47
In the situation of the concurrence of liabilities, the injured party may choose to base its action on either contract or tort rules. Depending on the situation, one of the causes is usually more favourable to the injured. However, a court is only bound by the factual basis of the claim, and not bound by the legal basis provided for by the plaintiff. Thus, it should take into consideration ex officio the possibility of application of the tort regime to the claim for non-pecuniary loss. The concurrence of liabilities creates some dispute in the doctrine. I share the view that the plaintiff may bring different claims based on different legal bases, but the court must apply the whole set of rules governing a given regime of liability to the claim based on this regime (burden of proof of fault, prescription, scope of damage). One may not create a mixed contractual-tortious regime.21
48
19
20 21
Art. 443 KC expresses that “the circumstance that the action or omission from which the damage arose constituted a non-performance or improper performance of a pre-existing obligation does not exclude a claim for redress of the damage caused by a tort, unless a different conclusion from the substance of the pre-existing obligation provides otherwise”. Dz.U. no. 91, at 408 with later amendments. See A. Ohanowicz, Zbieg norm w polskim prawie cywilnym (Warszawa 1963) 118; M. Nesterowicz, Note to the reported judgment, OSP 2/2006, item 20, 95.
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Ewa Bagińska
7. SN 13 October 2005, IV CK 161/05, OSP 6/2006, item 71: Wrongful Birth, Fault of a Physician a) Brief Summary of the Facts
49
This judgment is a result of the cassation from the judgment of the Court of Appeals in Białystok of 5 November 2004, reported in the Yearbook 2005, no. 74. The plaintiffs were the parents of a child born with a serious genetic illness. After the plaintiff became pregnant, she was refused an abortion, to which she was entitled by law (on the grounds of the so-called genetic reasons). The doctor did not refer the plaintiff to another hospital for an abortion or specialised prenatal diagnosis. The plaintiffs sought assistance from other hospitals, and the genetic defect of the child was discovered only in the 26th week of her pregnancy, that is when an abortion could no longer be performed. The plaintiffs’ daughter was born with the same serious dystrophy as her older sibling suffers from.
50
Suing the public hospital, the doctor and the director of the hospital jointly and severally, the plaintiffs claim: damages for non-pecuniary loss arising from the violation of the mother’s personal interests and of her patient’s rights, as well as damages for pecuniary losses. The plaintiffs did not raise any claims on behalf of their child.
51
The regional court held that the public hospital is liable for the negligence of its physicians, and for the violation of the plaintiff’s right to plan a family and her right to information. The Court awarded PLN 60,000 (€ 15,400) as non-pecuniary damages on the basis of art. 448 KC, and approx. PLN 7,000 (€ 1,800) for the loss of income and costs of psychiatric treatment. The other claims were dismissed.
52
The court of appeals held that the Civil Code provisions on personal injury do not embrace any parental claims for the maintenance of a child born with certain defects. Hence, the Court denied the claims of parents (i.e. for wrongful birth), but, obiter dicta, would allow the claims of a child (i.e. for wrongful life). However, the Court took the position that in this case the plaintiffs’ statutory right to this procedure was not enforceable since the condition of the foetus was diagnosed after the point in time when an abortion would still have been legally possible. Hence, there is no causal link between the damage and the hospital’s conduct. b) Judgment of the Court
53
The Supreme Court confirms the award of non-pecuniary compensation for the violation of patient rights. As to the fault of the physicians, the Court holds that a physician has a duty to maintain his competence in medicine, which means that he has a duty to educate himself and follow scientific developments. Genuine, not just formally certified, knowledge and skills matter. Any ignorance of this duty constitutes fault. Another duty is one to inform a patient so that the latter has grounds to make an informed and independent decision
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about the most important personal matters. The defendant hospital is liable for the fault of its physicians. The Court accepts the claim for wrongful birth based on the breach of the right of parents to plan a family. Such right is protected by art. 4a of the law of 7 January 1993 on family planning, protection of a human foetus and the conditions for admissibility of an abortion22 (hereafter “the law on family planning”). Parents have a right to decide about aborting a pregnancy due to genetic reasons. In the case of a negligent breach of that right, they can claim pecuniary compensation (art. 448 KC).
54
The scope of reparation of material losses covers: the expenses linked with pregnancy and birth, the loss of income after the birth of a handicapped child and also the increased cost of child maintenance. The birth of a child per se does not constitute damage to its parents. However, it is their loss to have to bear the additional costs of raising a handicapped child, which they did not plan nor agree to bear and which they would not have had to bear had their right to plan a family not been breached. The child has no claim for pecuniary loss since there is no right not to be born. The Court’s arguments heavily rely on comparative law.
55
The damages should be awarded pursuant to art. 444 and 361 § 2 KC but they are to be reduced by the amount of the social security benefits received in connection with the child’s disability. As a rule the additional expenses of parents should be awarded in the form of a monthly payment.
56
A causal relation exists between the conduct of the physicians and the loss suffered by the plaintiffs. The court of appeals erred in the assessment of evidence. Only one out of the five expert opinions presented at trial defined the moment when a child is capable of living outside the womb, and that is from the 24th week of pregnancy. In the light of the wording of art. 4a of the law on family planning, the said moment imposes a limitation on the possibility of an abortion. Hence, the said expert opinion should have been relied upon by the appellate court. All the experts agreed that the child’s genetic defect could have been discovered between the 20th and 24th week of pregnancy. Moreover, a genetic defect need not be established with certainty or only through prenatal examinations. Pursuant to art. 4a of the law on family planning, an abortion is allowed already when there is a high probability of such defects occurring, which may be showed on the basis of other medical preconditions.
57
c) Commentary
The decision is the first one in Poland to accept a wrongful birth claim. It should be approved of as it follows the solutions taken in most other legal systems. The Court does not try to break new ground, but wisely takes advantage of the experience of the foreign courts dealing with similar issues. 22
Dz.U. no. 17, item 78, with later amendments.
58
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Ewa Bagińska
59
However, it is arguable whether the Court should have limited the pecuniary damages to the increased cost of child maintenance instead of full cost. If we applied the theory of differentiation to the assessment of damages, the point of reference (that is the hypothetical state of the parents) should rather be the nonexistence of the child, because the child would never have been born had the parents had the possibility to exercise their subjective right to plan a family23. In fact, the plaintiffs did not want to incur any expenses arising from having a child, not just the additional cost related to the child’s serious disability.
60
Moreover, the basis for the claim – art. 444 KC (which relates to health disorder or physical injury), is somewhat questionable. The parents have not suffered any personal injury as a result of the doctor’s conduct, but neither has the child (who may not raise its own claim anyway).
61
I should highlight the Court’s general pronouncements of the forms of a physician’s fault. Until now, the courts have not expressed that mere ignorance of further education or of knowledge of the science of medicine constitutes a doctor’s negligence. In this particular case, the conduct of the physicians amounted to intentional fault. Nesterowicz points out that the establishment of intentional fault by the lower courts would have had an impact on the hospital’s right of recourse against its physicians-employees, who would then answer for the entire damage24. 8. SN 22 February 2006, III CZP 8/06, OSN 7-8/2006, item 123: Wrongful Conception, Scope of Damages a) Brief Summary of the Facts
62
This judgment is the second decision given by the Supreme Court in the case first reported in the Yearbook 2004 (SN of 21 November 2003, no. 19). Since the facts of the case were described in detail there, a brief mention should suffice here.
63
The plaintiff was raped, but a public hospital unlawfully refused to perform an abortion. In consequence, she bore a healthy child in due time. The woman claimed damages for non-pecuniary loss arising from the violation of her personality rights, and for the loss of income since the date of the first visit to the hospital until the date of filing the suit. On behalf of her son she demanded annuity amounting to his monthly maintenance costs. The defendants are the local authority answering for the hospital and the State Treasury.
64
The trial court dismissed the claim, and the court of appeals held that the Civil Code provisions on personal injury do not embrace the birth of a child and that there is no ground for the maintenance of the child by the community. The Su23
24
See note by M. Nesterowicz, OSP 6/2006, 336, note by T. Justyński, Panstwo i Prawo 7/2006, 111. Thus, unlike in a situation of a negligent conduct where they would answer to the limit of a three-month salary. See note by Nesterowicz, OSP 6/2006, 336.
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preme Court, in the decision of 21 November 2003, reversed and remanded the case for retrial, holding that a woman is entitled to recover identified pecuniary losses stemming from the refusal to perform an abortion if she had a statutory right to this procedure. The Court also held that a healthy born child has no claim for damages. It should be recalled that the plaintiff could not receive any damages for non-pecuniary loss, because the applicable provision of former art. 448 KC (tempus regit actum) required intentional fault. During the second trial the plaintiff raised her own claim for the entire cost of child maintenance. Thus, the case came back to the Supreme Court in the preliminary question procedure regarding the scope of damages, and in particular whether they include the part of the cost of the child support which would have been the duty of the child’s father, but which is actually borne by the mother.
65
b) Judgment of the Court
In this case the question is to what extent a person liable for a medical error is to compensate for the negative consequences of a crime committed by another person. The Court recognises a distinctive character of the case and refers to foreign solutions concerning wrongful birth, which in particular put limits to the parental claims for maintenance. However, the Court observes that these limitations, while justified in Germany, France or the U.S., should be carefully considered in Poland, where a much stricter system of admissibility of an abortion exists.
66
The Court first analyses the notion of damage, and in particular the criterion of loss “incurred against the victim’s will”. The child maintenance costs in this specific situation are not incurred in order to alleviate or repair the negative consequences of the tortious event, but on the contrary – their purpose is to support the child’s life. Life is not a damage but an autonomous and highest value protected by the legal order. However, this dogmatic argument alone would lead to the denial of the claim for the maintenance. This Court does not accept such a conclusion on policy grounds. It argues that giving birth to a child should be distinguished from a loss stemming from the duty to support the child. In the situation before the Court the rigid rules of causation would lead to socially unacceptable results. Unlawful events (such as a medical error) may exceptionally produce positive consequences (a child’s birth), which in turn lead to consequences such as the duty to cover the child’s living expenses. Granting a mother support in the realisation of that duty is socially acceptable. As a rule, damages should be assessed according to the criteria used in alimony cases and awarded as a monthly payment.
67
With respect to the causation issue, the Court argues that when a gynaecologist examines a woman to determine the age of the foetus with a view to possibly permitting an abortion, his error in diagnosis (the lack of greater precision and certainty of the examination) is in an adequate causal relation with the failure to perform an abortion and giving birth to an unwanted child.
68
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69
Adequate causation in Polish law also operates as a limit to the scope of damages. The Court observes that although an abortion is not allowed on economic grounds, one should distinguish a case of a raped woman, whose right to an abortion is covered by the law on family planning. The person liable for the medical error (leading to the denial of an abortion) should compensate for the child support expenses as they are a normal consequence of the error. The parent(s) did not want to incur the cost that they are now obliged to pay and that now diminishes their patrimony.
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Eventually, the Court answers the questions in the following way: “in a case where an abortion was wrongfully denied to a raped woman and the offender has not been identified, the person responsible for the denial is liable to cover the cost of the child support to the extent that cannot be covered by its mother who exercises personal care of the child”. c) Commentary
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The issue in this case was controversial. The decision confirms that under Polish law in a wrongful conception case only a mother (or parents), and not the healthy unwanted child, is entitled to both pecuniary and non-pecuniary damages.
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In the case reported supra no. 49 ff. the Supreme Court narrowed the cost of child support recoverable by the parents to the additional expenses linked with the child’s disability. However, in that case the parents could have avoided the conception, but did not. In the present case, the pregnancy was the effect of a criminal act, thus the mere conception was unwanted25. Both mothers were wrongfully refused an abortion that was allowed by law, but the scope of liability is different because the nature of conception was different.
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The defendant has to cover only the part of the expenses that cannot be borne by the mother. Particular situations may lead to different results. If a trial court decided that a woman is rich enough and capable of fully supporting her child, it should not award this element of the damage. On the other hand, when a mother has little or no income and needs financial support, the court should award a proper “alimony”. In the latter situation the defendant would also pay for the contribution due from the unknown father of the child.
74
I agree with a suggestion made by the court and Nesterowicz26 that the legislator should undertake action in order to set up a fund to provide support to minors who were born by mothers whose statutory right to an abortion had been unlawfully violated.
25 26
See note by M. Nesterowicz, Prawo i Medycyna 1/2007, 129. See note by Nesterowicz, OSP 6/2006, 336.
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9. SN Resolution of the Full Civil Chamber, 17 February 2006, III CZP 84/05, OSN 7–8/2006, item 114: Tort Claims Prescription 10. TK 1 September 2006, SK 14/05, OTK 8/2007, item 97: Tort Claims Prescription – Unconstitutionality of Art. 442 KC Both judgments relate to the same issue of the interpretation of art. 442 KC and will be reported together for the reasons of efficiency and clarity. The Resolution of the Full Civil Chamber of SN was the response to the preliminary question asked by the Ombudsman. In April 2006 the Commission for the Codification of Civil Law prepared a bill revising art. 442 KC with the aim of alleviating the outcome of the resolution 17 February 2006. The judgment of the TK was initiated by a constitutional action of an individual, but may be seen as a reaction by the Tribunal to the position taken by the Supreme Court and to the failure of the legislative change.
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a) Brief Summary of the Facts
In Polish law tort claims should be brought to the court within two time limits: three or ten years. “A claim for redress of damage caused by a tort is subject to limitation on the expiration of three years from the day on which the injured person learned of the damage and of the person obliged to redress it. In any event, however, the claim is subject to limitation after the passage of ten years from the day on which the event causing the damage occurred” (art. 442 § 1 KC). The problem of compensating personal injuries stemming from the events that took place earlier than ten years before the occurrence of the damage has been tackled differently by the courts27. Therefore, the Ombudsman requested the Supreme Court to provide an interpretation of art. 442 § 1 sent. 2 KC, i.e. how to assess the passage of the ten-year limit if the damage occurred after the expiry of that time.
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b) Judgment of the Court
There are two possible ways of interpreting sent. 2 of art. 442 § 1. Both of them have been present in the case law of the Supreme Court since 1933, when the rule first appeared in the Code of Obligations, and have support in the legal writing.
77
The currently dominant view in case law and doctrine considers the ten-year period as a maximum and that it must always be counted from the day of the tort (a tempore facti), and not from the day of the awareness of the damage. It applies equally to future losses and to losses which the victim was unaware of.
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The opposite view, according to which the time period begins to run from the day on which the damage occurred is represented by, inter alia, the SN judgment of 21 May 2003 (reported in Yearbook 2004, no. 12). That position emphasizes the meaning of the general rule of art. 120 § 1 KC stating that the
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27
This norm, although criticised by courts and doctrine, has not been changed since the 1933 Code of Obligations, with the exception of the shortening of the prescription period from twenty to ten years in 1950.
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period of limitation begins to run on the day the claim accrues. If the damage has not occurred, the claim for damages does not even arise. The linguistic construction of art. 442 § 1 KC narrows its application to typical situations where the time of the event and the time when the damage resulting from it occurs are the same or very close. The functional interpretation allows for the true right to demand compensation in cases where the damage occurred long after the event constituting its cause.
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The Court chooses to adhere to the strict construction of art. 442 § 1 sent. 2 KC and provides several arguments to justify this decision; first and foremost the language and systematic interpretation. Verba legis are clear. No distinction is made with respect to the type of damage. The notions “an event bringing about the damage” and “tort” are not identical. The day of the event marks the beginning of the limitation period even if damage – the last element of a tort – has not yet occurred. The said provision should be treated as lex specialis to art. 120 § 1 KC. There are many more provisions in the Civil Code that provide for a special date marking the beginning of the prescriptions of claims. These rules take account of the nature and contents of a particular claim. Therefore, while construing art. 442 § 1 KC, no reference should be made to the notion of “accrual of claims”.
81
The prescription of claims mainly protects the interest of the tortfeasor (debtor), but public policy and legal certainty also require that liability claims are raised and resolved within a reasonable time. The three-year period (a tempore scientiae) is quite flexible. On the other hand, the day of an event triggering damage is the objective moment that best serves as a starting day of the ten-year period. The comparative analysis supports this view.
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SN does not approve of the length of the period and it acknowledges the problems of compensating future personal injuries. Nevertheless, it recalls that the injured person could obtain a declaratory judgment that would proclaim the defendant’s liability for future damage. Then, the limitation period for the new claims would begin to run on the day when the injured person learned of the new damage. The victim may also take advantage of the defence of abuse of right by the person liable (art. 5 KC). c) Judgment of the Constitutional Tribunal (TK)
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The constitutional control was initiated by an individual who was denied redress for personal injury because the period of limitation had lapsed. He was exposed to radiation when he served in the army in the 1980s, but the harm occurred at a later time. After he had lost in all courts, the plaintiff questions the constitutionality of art. 442 KC.
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TK observes that the question is essentially whether the verbal interpretation of art. 442 § 1 sent. 2 KC, i.e. the interpretation approved of by the Supreme Court in the judgment of 17 February 2006, is constitutional. The Tribunal states that even though the Constitution does not regulate the limitation of claims, the
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latter institution may have some impact on the protection of subjective rights, including the constitutional subjective rights. Therefore, TK reviews art. 442 § 1 KC from two perspectives. First, against the background of State liability for damage inflicted through exercise of public authority – art. 77 sec. 1 of the Constitution. Secondly, it examines the relations between the shape of the prescription of claims against public authorities and the general structure of the prescription of tort claims in the Civil Code. As concerns art. 77 sec. 1, the Tribunal stresses that public liability guarantees that the risk and losses arising from State administration will not be shifted onto individuals. The conditions of this liability must be so shaped as to provide an injured person with a genuine possibility of receiving compensation. The scope of the liability may not be freely determined by the statutes. TK narrows the legislator’s powers even further in the cases of state activities that are particularly linked with hierarchy and discipline, such as police and army. Less discretion is justified by the higher risk of losses arising from military service as well as by the stronger general public interest pursued by this type of activity. Moreover, personal injury triggers a particularly intense protection in the legal system. The Tribunal argues that the specific regulation of prescription of claims provided for in art. 442 KC is not to be approved of in the case of liability of public authorities, because it implies that the subjective right to redress protected by art. 77 sec. 1 of the Constitution is illusory.
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With respect to the second issue, TK argues that the expiration of claims may not be dealt with differently on the grounds of class of defendants, because this would contradict the requirements of justice and equal treatment. The only permissible distinction may be made between damage to persons and damage to property, with better protection granted to the former (art. 30 of the Constitution – protection of life and dignity). However, the rules on redressing personal injury should apply equally to all defendants. The Constitution is violated when a pecuniary right becomes fictitious due to the mechanism of claims’ prescription.
86
The Tribunal takes the view that the controlled provision is flawed because it takes a wrong point in time as the beginning of the period of limitation. TK emphasises the prevailing role of the general rule of art. 120 KC. Thus, the claim for compensation will not arise until the damage actually occurs. In consequence, the letter of art. 442 KC violates the rules of drafting of legislation (hence art. 2 of the Constitution).
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Nevertheless, the situation calls for the intervention of the legislator. TK suggests that the problem does not lie in the extending of the period of limitations but in identifying a proper moment of its commencement. The prescription of pecuniary claims should rather be coupled with the moment when the claim has already arisen and, hence, could actually be settled.
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The Tribunal holds that art. 442 § 1 sent. 2 KC contravenes art. 2 and art. 77 sec. 1 of the Constitution because it deprives the injured of a claim for compen-
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sation of the personal injury that occurred after the lapse of the ten-year limitation period. The provision will be binding until the end of 2007. d) Commentary
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The Tribunal opens a new way of interpreting art. 442 § 1 KC. Dealing with the problem of time-prescribed tort claims on the grounds of the action involving an injured soldier whose claims were rejected by the State, the Tribunal holds that the structure of prescription of tort claims in the Civil Code violates constitutional values. It seems that the Tribunal would have favoured the functional interpretation of art. 442 § 1 had it been the Supreme Court. But it is not and instead acts as a negative legislator. The situation needs to be resolved by the end of 2007. At the moment not only is the prescription time shorter than in the main European codes, but it also puts all victims whose damage became evident more than ten years after the tort at a disadvantage. A possibility of a declaratory judgment does not solve the problem, because it could not be used whenever the first damage did not occur until ten years after the event.
C. LITERATURE 1. E. Bagińska, Odpowiedzialność odszkodowawcza za wykonywanie władzy publicznej (Tort Liability of Public Authorities) (C.H. Beck, 2006)
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The monograph covers the rules on liability for exercise of public authority in Polish and comparative law. The broad comparative part of the book identifies the actual trends in the evolution of public liability in major legal systems. The analysis of Polish law seeks to explain the premises of this liability as newly shaped in the Civil Code and in art. 77 of the Constitution. The author studies numerous court cases and doctrine, as well as the European law. She supports the functional interpretation of “exercise of public authority” and advocates a broad understanding of “illegality” (unlawfulness) in art. 417 Civil Code. The author tries to find answers to the theoretical and practical problems of liability for unlawful judgments and decisions, legislative wrongfulness, delayed legal proceedings and enforcement of judgments. She believes that the objectivization of liability should result in the formulation of rational limits to liability. 2. Zielona Księga, Optymalna wizja Kodeksu cywilnego w Rzeczypospolitej Polskiej (Green Paper. The Optimal Vision of the Civil Code in Poland), in: Z. Radwański (ed.), Ministerstwo Sprawiedliwości (2006)
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This is a product of the Commission for the Codification of Civil Law whose term finished in August 2006. It represents the view prevailing in the Commission as to the need for and shape of a future Civil Code. The contents cover all civil law issues regulated in the Civil Code and the Family Code. The book was prepared by many authors, but the main editor is the President of the Commission, Prof. Z. Radwański (who has been re-appointed for the current term).
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The work includes comparative remarks and conclusions from the cooperation with Dutch experts. With regard to torts, the Commission suggests tackling the following issues: the general clause of liability, currently shaped after art. 1382 of the French Code (possibly to separate wrongfulness and fault), strict liability for dangerous activities and emissions, stricter liability for minors and animals, corrections to product liability, burden of proof in personal injury cases, and problems of extending the scope of reparation of non-pecuniary losses. 3. R. Mikosz, Odpowiedzialność za szkody wyrządzone ruchem zakładu górniczego (The Liability for Damage Caused Through the Activity of a Mining Enterprise) (Zakamycze-Wolters Kluwer, 2006) The subject of this monograph is the liability for damage caused through the activity of a mining enterprise. It is a thorough analysis of the law on mining (199428) and the provisions of the Civil Code. The main part is devoted to the construction of the liability, its premises, the persons liable and the ways of reparation (in the case of mining and geological damage, compensation in kind is a principle). The author also discusses the claims for prevention of damage and the procedure for the settlement of claims. 4. Articles: a) M. Nesterowicz/E. Bagińska, Civil liability for automobile accidents in Polish law, in: Essays on Tort, Insurance, Law and Society in Honour of Bill W. Dufwa, vol. II (Stockholm 2006) 833–845 b) R. Trzaskowski, Zadośćuczynienie za krzywdę związaną z niewykonaniem lub nienależytym wykonaniem zobowiązania (Compensation for Non-Pecuniary Loss in Contractual Liability Cases), Przegląd Sądowy 5/2006, 21–39 c) M.K. Chmielewska, Przedawnienie roszczeń deliktowych o naprawienie tzw. szkody przyszłej (Limitation of Claims for Reparation of a Future Damage), Rejent 3/2006, 120–137 d) R. Klimek, Dyskusyjne problemy przedawnienia roszczeń (Discussing Problems of Limitation of Claims), Kwartalnik Prawa Prywatnego (KPP) 3/2006, 633–667 e) A. Józefiak, Przedawnienie roszczeń o naprawienie szkody wyrządzonej czynem niedozwolonym w świetle Konstytucji (Limitation of Tort Claims for Damages in the Light of the Constitution), KPP 3/2006, 669–697
28
Act of 4 February 1994 – Law on Mining and on Geological Activity, Dz.U. 2005, no. 228, item 1947 with later amendments.
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XIX. Portugal André G. Dias Pereira
A. LEGISLATION 1. Decree-Law no. 29/2006, of 15 February (National Electricity System Act)
1
The Portuguese legislator continues the trend to impose mandatory civil liability insurance for dangerous activities. This Act of Government establishes general principles concerning the organisation of the national electricity system as well as the production, transport, distribution and commercialization of electricity and the organisation of the electricity market, implementing EU Directive 2003/54/EC, of the Parliament and the Council, of 26 June. Art. 75, concerning warranties, imposes on operators and sellers a duty to contract civil liability insurance, proportional to the potential risk of their activity. 2. Decree-Law no. 30/2006, of 15 February (National Gas System Act)
2
This Act establishes general principles concerning the organisation of the national gas system, as well as the exercise of activities of reception, storage, transport, distribution and commercialization of natural gas, and the organization of natural gas markets, implementing Directive 2003/55/EC, of the Parliament and the Council, of 26 June. Art. 69 imposes on the operators and sellers of gas a duty to contract civil liability insurance, proportional to the potential risk of their activity. 3. Decree-Law no. 31/2006, of 15 February (National Oil System Act)
3
This Act establishes general principles concerning the organization of the national oil system, as well as the exercise of activities of reception, storage, transport, distribution, refinery and commercialisation of oil, and the organisation of the oil market. Art. 39 imposes on the operators and sellers of gas a duty to contract civil liability insurance, proportional to the potential risk of their activity. Moreover, operators and sellers may be demanded to provide a monetary caution in order to restore the natural environment and to solve emergency situations concerning persons and goods. Thus, the operator or the seller must deposit some amount of money in a bank that can be used in case of damage to the environment.
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4. Law no. 5/2006, of 23 February (Guns and Munitions Statute of Parliament) Strict liability is steadily growing as a kind of responsibility. The Portuguese Parliament (Assembleia da República) approved the new Guns and Munitions Act. According to Art. 77, licensed gun owners are strictly liable for damage caused to third parties by their guns or their activities. Moreover, if the owner recklessly violates a norm concerning the keeping or transport of a gun, she/ he is jointly and solidarily liable for damage caused by a third party who uses, lawfully or not, her/his gun. As a complement to strict liability, mandatory civil liability insurance is imposed.
4
Some guns may be leased, but only for hunting activities. The lease contract must be written and certified by the police (who keeps a copy of the contract) and the lease is valid for no longer than 180 days. Only in the case of leasing in accordance with the referred requisites is the gun’s owner exempted from liability.
5
5. Decree-Law no. 72-A/2006, of 29 March (Liability of a Corporation’s Managers) This Act changed the Code of Corporations (Código das Sociedades Comerciais) and established the specific duties of care and allegiance or loyalty of managers and members of supervision bodies.
6
Art. 72 (1) provides a presumption of fault on the managers or administrators: company managers or administrators are liable towards the company for damage caused to it by actions or omissions committed in violation of their legal or contractual duties, except if they prove that they acted without fault. However, there is an exemption clause (Art. 72 (2)), which is considered as a business judgment rule clause.1
7
6. Law no. 13/2006, of 17 April (Collective Transport of Children Statute of the Parliament) According to this Act, compulsory civil liability insurance is mandatory for the collective transport of children.
8
7. Law no. 31/2006, 21 July (Compensation of Victims of Criminal Acts) The Portuguese law concerning compensation of victims of violent crimes dates back to 1991 (DL 423/91, 30 October). It has been amended by Laws no. 10/96, 23 March, and DL 62/2004, 22 March, which implement into national law Directive 2004/80/EC, of the Council, of 29 April, concerning compensation of victims of crime. This new Act of Parliament also aims at duly implementing the referred Directive. 1
Art. 72 (2) Commercial Companies Code states: “Liability is excluded if the person proves that he/she acted in an informed way, free from any personal interest and according to criteria of business reasoning.”
9
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10
According to this Act, the Portuguese State shall compensate victims of severe physical injuries arising from intentional acts of violence that take place in Portuguese territory or on Portuguese ships or airplanes. Those who have a right of alimony according to civil law (Art. 2009 CC and Law 7/2001, of 11 May, concerning de facto unions) may also claim compensation from the State. However, a necessary requisite is that such crime has created a substantial prejudice in the claimant’s standard of living. This compensation is restricted to pecuniary damages and is established according to fairness grounds and limited by caps.2
11
This new amendment regulates issues of intra State liability questions, such as those cases when the claimant is a resident of another Member State, or when compensation shall be awarded by another Member State, or issues concerning the language of the file. 8. Law no. 36/2006, of 26 July (Medically Assisted Reproduction)
12
In July 2006, twenty years after the first Portuguese test tube baby was born, Portugal adopted its first law governing medically assisted reproduction techniques.
13
Some of the Statute’s fundamental rules are the following: 1) Assisted reproduction is only allowed for married couples or de facto unions (in this case unions which have been in existence for more than two years). This Law denies homosexual couples and single women access to assisted reproduction (Art. 6). 2) It bans cloning for reproductive purposes and the creation of chimeras or hybrids (Art. 7). 3) This Act leaves the “door open” for therapeutic/scientific cloning under very strict conditions (Art. 9 (4)) d) and Art. 36 (only criminalizes reproductive cloning)).3 4) The Act bans surrogacy, although it only criminalizes “commercial” surrogacy (paid surrogacy) and “surrogacy-agency” (Art. 8 and Art. 39). 5) It authorises pre-implantation genetic diagnosis (PGD) to eliminate embryos carrying certain diseases but this cannot be carried out for non-medical purposes, such as choosing the sex of the child (Art. 28 and 29). 6) It also authorises, under strict conditions and with the approval of the National Council on Medically Assisted Reproduction, so-called “designerbabies”, that is an embryo that is HLA (human leukocyte antigen) compatible to treat a serious disease of a relative (a brother) (Art. 9 (3) and Art. 28). 7) Human embryos which are not implanted should not be kept for longer than three years and can be donated to a receiver couple (Art. 25). 8) Children born through IVF using donor gametes will be able to request genetic information on the donor but anonymity of the donor remains guaranteed, although under special circumstances a court may authorise the disclosure of some elements of 2
3
Those caps are the double of the minimum value of the action in case of appeal to the Supreme Court in case of one injury (that is, 2 x € 14,963.94 = € 29,927.88) and six times that value in case of several injuries (that is, 6 x € 14,963.94 = € 89,783.64). Some authors point out that this possibility may be considered in contradiction with Art. 18 (2) of the Oviedo Convention. Others state that in 1997 the “legislator” of the Convention on Human Rights and Biomedicine did not consider this problem.
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identification (Art. 15). 9) Although the Act bans post-mortem insemination, it accepts the implantation post-mortem of an embryo. That is, if at time of death of the husband there was already a conceived embryo, the widow is allowed to – after due consideration and a reasonable delay – demand the implantation of the embryo (Art. 22). 10) Payment of egg or sperm donors is not allowed (Art. 18). 11) Creation of embryos for research is prohibited (Art. 9 (1)). 12) However, it authorises research with embryos, after approval of the National Council on Medically Assisted Reproduction and consent of the couple involved. Research is possible with frozen surplus embryos; embryos which are neither in a condition to be implanted nor frozen; genetically “defective” embryos and the “embryos which are obtained without fecundation by a spermatozoid” (that seems to be a cloned embryo) (Art. 9 (2, 3, 4 and 5)). This Law is in accordance with the mainstream legislation at the European level. It may be seen as “liberal” as regards PGD, the non-prohibition of “designer-babies” and the acceptance of therapeutic cloning. However, it must be emphasised that such procedures have to be authorized and supervised by the National Council with experts in the scientific and bioethical area. On the other hand, it remains conservative as regards the access to ART (only to heterosexual couples) and the prohibition of surrogate motherhood.
14
This Law provides a clarification of the rights and duties of professionals involved in this area of medicine. These legislative options will have an impact on the development of tort law in the area of assisted reproduction techniques.
15
9. Decree-Law no. 144/2006, of 31 July (Insurance Mediation Act) This Decree-Law implements Directive 2002/92/EC, of the Parliament and the Council, of 9 December, concerning insurance mediation and establishes legal requisites to exercise the activity of mediators of insurance or reinsurance. This professional shall contract civil liability insurance that covers all the territory of the European Union.4
16
10. Law no. 46/2006, of 28 August (Anti-Discrimination Act Concerning Persons With Handicaps or Aggravated Health Risks) Parliament enacted a Statute that prohibits and punishes discrimination concerning persons with a handicap or with aggravated health risks. The scope of this Statute is to prevent and prohibit direct or indirect discrimination for reasons of handicap or aggravated health risk and to sanction activities which infringe fundamental rights or that imply the refusal or limitation of economic, social and cultural rights, by public or private entities.
17
The violation of the equality principle for reasons of handicap or aggravated health risk of a citizen is a discriminatory act. The Statute enumerates the following examples: refusal of provision of goods or services; refusal or limitation of access or normal exercise of an economic activity; refusal or limitation
18
4
On the literature, see José Vasques, Novo Regime Jurídico da Mediação de Seguros (2006).
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of a sale or rent agreement, as well as house credit access; refusal or limitation of insurance contracts; refusal or the limitation of the use of sign language; refusal or limitation of access to public places or places open to the public; refusal or limitation of access to public transport; refusal or limitation of access to health care facilities, public or private; refusal or limitation of access to teaching facilities, public or private and measures that would limit access to new technologies. Concerning the labour market, the Statute provides protection against the adoption of criteria which would limit the access of handicapped people or people with aggravated health risks, as well as the publication of job announcements which contain any preference related to a discrimination based on handicap or aggravated health risk.
19
In case of discrimination there is a right to claim damages in tort for pecuniary and non-pecuniary damage (Art. 7). In evaluating the damage, the court shall take into consideration the degree of wrongfulness, the economic status of the injurer and the personal conditions of the injured. Moreover, in case of condemnation, the court decision has to be published in a national newspaper. However, the identity of the injured is only revealed if his/her consent is given. 11. Decree-Law no. 176/2006, of 30 August (Drugs and Medicines Act)
20
This Statute provides a special provision for drugs which may be necessary in case of biological, chemical or nuclear disasters. Art. 92 (1) (b) allows special authorization, among other cases, for drugs which are necessary to avoid the propagation, actual or potential, of pathogenic agents, toxins, chemical agents or nuclear radiation that may cause severe effects.
21
Moreover, producers, bearers of a special authorisation or health care workers are exempted from civil or administrative liability if they use such drugs, when their utilisation is recommended by health care authorities (Art. 93 (6)). This exemption clause seems to be broader than that provided in the Product Liability Act. In fact, Decree-Law no. 383/89, of 6 November, which implemented Directive 85/374/EEC (modified by Decree-Law no. 131/2001, of 4 April), accepts the exemption of producers from liability: the producer is freed from liability only if she/he proves, among other situations, that the defect is due to compliance of the product with mandatory regulations issued by the public authorities (Art. 5 (d) Product Liability Act).
22
Thus, the difference between the concept of “recommended utilization” and “mandatory regulations” deserves to be analysed by literature and case law. 12. Decree-Law no. 187/2006, of 19 September (Phito-Pharmaceutical and Packing Act)
23
This Decree-Law establishes the conditions and safety procedures concerning the treatment of excess of phito-pharmaceutical products and packing waste management systems. The operators of these activities shall contract civil liability insurance.
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B. CASES5 1. Supreme Administrative Court, 1 March 2005: Blood Transfusion; HIV; Strict Liability a) Brief Summary of the Facts
In January 1994, the plaintiff underwent surgery in a public hospital. She was administered blood, which was contaminated with HIV. In September 1994 she realized she was HIV-positive. She then sued the hospital. During the investigations, it was discovered that the donor of the blood she received was HIV-positive and was being treated in a different hospital. The donors’ control during the blood donation was not successful, although, according to the medical records, there were no indications that the person donating blood should not be considered a blood donor. Moreover, the laboratory tests (which were the best available on the international market at the time) did not reveal that the blood was contaminated, since the blood was donated during the “window period.”
24
Although there was no fault, the lower court condemned the hospital on the basis of no-fault liability of public entities (Art. 8 Decree-Law 48051, of 21 November 1967). This article states that: “The State and other public entities are liable for special and abnormal damage that arises from the functioning of administrative services exceptionally dangerous or things or activities of the same nature (exceptionally dangerous), except, when it is proved that an act of “force majeure” alien to the functioning of those services, or the fault of the victim or of a third party; in this case liability is distributed among the degree of fault of each intervenient.”
25
b) Judgment of the Court
The Supreme Administrative Court decided that the hospital was liable on grounds of no-fault liability for damage caused by a transfusion of contaminated blood. According to the Court, in January 1994, and taking into consideration the scientific instruments available, a blood transfusion (of eritrocitary elements) collected from a blood donor was an especially dangerous activity. These elements cannot be controlled if the blood is donated within the “window period”.
26
The hospital (defendant) was ordered to pay compensation of € 29,927.87 for non-pecuniary losses including: reduction of life expectancy, permanent diminution of the physical and psychological condition; loss of quality of life, trauma and anguish, social discrimination and shame; the discomfort of having to take medication and medical treatment for the rest of his life.
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5
Except when otherwise referred, these cases can be found on www.dgsi.pt.
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c) Commentary
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In my opinion, this is a fair and correct decision, since the facts of the case (HIV-contaminated blood transfusion collected from a donor during the “window period”) fulfil the requirements of the norm that creates strict liability for special and abnormal damage that arises from the functioning of administrative services exceptionally dangerous or things or activities of the same nature.
29
From a comparative law point of view, it is interesting to note that the Supreme Administrative Court mentioned French law and case law (that accepts strict liability for contaminated blood transfusions) in order to add more arguments to its decision. 2. Decision of the Supreme Administrative Court of 15 December 2005 (Cadernos de Justiça Administrativa (CJA) 2006, 57, 24 ff.): HIV Blood Contamination; Liability of a Public Hospital a) Brief Summary of the Facts
30
In 1986 a patient was contaminated with HIV 2 during a blood transfusion in a public hospital in Oporto. The injured patient and his wife sued the hospital and the Portuguese State for damages. After a long discussion concerning limitation of action, the Supreme Administrative Court considered that the case could still be decided. However the Portuguese State was found as a nonlegitimate party in the action.
31
In 2004 the Administrative Court of Oporto dismissed the claim, considering that the professionals involved and the hospital had not acted negligently, since until 1987 the virus HIV 2 could not have been detected since it was not yet known in the scientific community. At that time the scientific community only knew of HIV 1. b) Judgment of the Court
32
The Supreme Administrative Court (Supremo Tribunal Administrativo, STA) explained correctly that liability of public bodies can arise from two sources: negligence and no-fault liability. Concerning a fault-based demand, the STA agrees with the conclusions of the lower court (there was no fault), since until 1987 no-one could have detected HIV 2 in a healthy blood donor.
33
Concerning no-fault liability, Art. 8 of Decree-Law 48051, November 1967, states that: “(…) other public entities are liable for special and abnormal damage that arises from the functioning of administrative services exceptionally dangerous or things or activities of the same nature (exceptionally dangerous), (…)”.
34
However, in this case, the STA decided that a blood transfusion cannot be qualified as an exceptionally dangerous activity, since it is – in the words of the court – an “ordinary medical procedure”. Therefore, the STA did not award damages to the plaintiffs.
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c) Commentary
This decision was commented by Carla Gomes,6 who very strongly contests its conclusion. State liability is a difficult and complex issue,7 and it is clear, under Portuguese law, that there is liability for negligent activities and no-fault liability.
35
The situation of HIV contamination at a time (1986) when the scientific community could not yet have detected the virus (HIV 2) seems to be a clear example of an exceptionally dangerous activity which causes special and abnormal damage to the injured patient. In fact the normal example of no-fault liability of the State in Portuguese literature is the case of damage caused by vaccination.8
36
I agree that this activity (blood transfusion) is exceptionally dangerous since doctors cannot control all the risks involved and the damage is special and abnormal since it does not fall on all citizens, but rather, only some patients have been, unfortunately, contaminated.
37
3. Supreme Court of Justice, 11 November 2005: Bullfight; NonPecuniary Damages of an Association of Animal Rights Activists a) Brief Summary of the Facts
In a small town near the Spanish border (Barrancos), a group of people organised an illegal bullfight, which included the killing of the bull in the arena as part of the spectacle. The killing of bulls during such shows has been a criminal offence in Portugal since 1928.9
38
The plaintiff, an animal protection association, claimed that it suffered serious non-pecuniary losses.
39
b) Judgment of the Court
The Supreme Court denied compensation for non-pecuniary losses to the plaintiff (a legal person: an association). The existence of serious non-pecuniary 6
7
8 9
C. Amado Gomes, (Ir)responsabilidade do Estado por transfusão de sangue com HIV: a tradição ainda é o que era (?), Cadernos de Justiça Administrativa (2006) 57. The author also provides a comparative law study with French law in respect to HIV contaminations in public hospitals. E. Bagińska, State Liability in a Comparative perspective, Boletim da Faculdade de Direito (2005) 81, 851–864, published in Portugal an interesting study concerning this issue. In the field of medical liability, M. Nunes, O ónus da prova nas acções de responsabilidade civil por actos médicos (2006), wrote a monograph concerning the burden of proof in civil liability for medical acts. A. Moniz, Quando caem em desgraça os discípulos de Hipócrates, Cadernos de Justiça Administrativa 2005, 50, 15 ff. discusses legal issues concerning tort liability of public hospitals. J. Gomes Canotilho, A Responsabilidade do Estado por actos lícitos (1974). In Portugal, the killing of the bull during the event is not allowed. It constituted a crime during most of the 20th century (Decree no 15 355, 11 April 1928). However, that Act was revoked by Law no. 12-B/2000, of 8 July. Nowadays, these events are, in general, forbidden and punished by a fee (administrative law punishment). Law no. 19/2002, of 31 July exempted from that prohibition bullfights where the bull is killed in places where, according to a continuous tradition of more than 50 years, such events have been taking place without any suspension. This very controversial legislation in fact authorised the killing of the bull in that border-town.
40
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André G. Dias Pereira
damage was not proved. Such losses do not arise automatically from the specific nature of the association and the legally recognised interest to pursue legal claims for the protection of animals. Moreover, the bullfight had not damaged the image and reputation of the plaintiff but, on the contrary, had given it much publicity in the pursuit of its aims. The pity arising from the pain and suffering to the bulls, or the illegal nature of the spectacle was also not sufficient as a basis to establish non-pecuniary losses of the association.10 c) Commentary
41
Unfortunately, from a European perspective, animal protection is still underdeveloped in Portugal.11 The question posed by this case is the following: shall we use tort law to punish an organisation that pursues illegal activities? Is compensation for non-pecuniary losses an alternative to punitive damages (which are not accepted in Portugal)? The main doctrine states that civil law is not suitable to solve these problems. Only administrative or criminal law can pursue such scope of prevention and punishment of illegal activities. Although the Animal Protection Act12 provides zoophile associations with the right to represent the interests of animals in court (Art. 10), the Supreme Court did not award compensation for non-pecuniary damage. 4. Supreme Court of Justice, 17 November 2005 (CJ-STJ, 2005, III 117–120): Car Rally; Dangerous Activity a) Brief Summary of the Facts
42
During a car rally, an accident occurred and a policeman was injured. The injured person sued the organisers of the rally for damages. b) Judgment of the Court
43
The Supreme Court of Justice decided that a car rally is a dangerous activity subject to liability with a presumption of fault under Art. 493 (2) Civil Code. The organisers of the rally were found liable for failing to guarantee protection against the specific risks inherent to such a motor sport competition. c) Commentary
44
The inversion of the burden of proof in case of dangerous activities is a very practical way to obtain compensation for damage. Courts interpret this concept broadly in case of motorised sports activities.13
10 11
12 13
See P. Mota Pinto, European Review of Private Law (ERPL) 2006, Vol. 14, 4, 588. For an overview of animal protection in Portuguese civil law, especially in case of pigeon shooting, see A. Pereira, O Tiro aos Pombos na Jurisprudência Portuguesa, Cadernos de Direito Privado, 12, Oct.–Dec. 2005, 21–53. For a philosophical approach, F. Araújo, A Hora dos Direitos dos Animais (2003). Law no. 92/95, 12 September, amended by Law no. 19/2002 of 21 July. The Supreme Court of Justice, 11 June 2002 (CJ-STJ (2002) 87) already applied the inversion of the burden of proof (Art. 493 (2)) in a Go-Karting race case.
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5. Supreme Court of Justice, 4 April 2006: Pre-Contractual Liability; Good-Faith; Duty to Inform a) Brief Summary of the Facts
A partner in a private limited company sold his share (contract of transfer of participation (cessão de quotas)).14 That company had many debts, but the sellers did not inform the buyer about this. The buyer claims he was not informed by the sellers that the company had debts and claims compensation for damage.
45
The court of first instance denied compensation; however the Court of Appeal ordered compensation of € 16,757.70 plus interest.
46
b) Judgment of the Court
The Supreme Court decided that Art. 227, which provides compensation for culpa in contrahendo, applies. The ground for this norm is the principle of good faith. Although the contract remains valid and effective, this norm is applicable and permits compensation of damage. The sellers violated the duty to inform, imposed by the principle of good faith, concerning the debts of the company.
47
The amount of compensation is equal to the amount of debts; the Supreme Court thus upheld the decision of the Court of Appeal.
48
c) Commentary
The legal nature of pre-contractual liability (whether it is a form of contractual liability, a form of extra-contractual liability or a tertium genus) is much discussed in the literature. The Supreme Court did not take a position in that dispute. On the other hand, normally Art. 227 is applied when there is a sudden abandonment of negotiations15 or when a contract is declared invalid or does not produce legal effects. However, this seems to be a correct decision and a balanced evaluation of the damage.
49
6. Supreme Court of Justice, 12 September 2006: Defamation; Politician’s Right to Honour a) Brief Summary of the Facts
The plaintiff, an architect and a member of the municipal “government” sued the defendant, because this person, during a public meeting at the Town Hall, expressed opinions with the intent to damage his honour and reputation, and 14
15
This case concerns a private limited company, where share capital is divided into quotas whose holders are jointly liable for paying the company capital and liable for the total amount of share equity. In case of debt or bankruptcy, only the company’s assets can be used to pay creditors. The trade name must have the name “Limitada” (Ld.ª). See D. Cunha, Responsabilidade Pré-Contratual por Ruptura das Negociações (2006). See also E. Silva, Da Responsabilidade Pré-Contratual por Violação dos Deveres de Informação (2003).
50
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caused him anguish and moral suffering. Moreover, such statements were reproduced in the mass media and caused the plaintiff losses when he returned to his professional activity as architect. He claimed compensation of approx. € 25,000 plus interest for non-pecuniary losses.
51
The lower court awarded compensation of € 5,000 and the Court of Appeal of Oporto ordered the defendant to pay € 7,500.
52
The defendant appealed to the Supreme Court, claiming that the right to express one’s opinions exists in a democratic society and that he did not injure the claimant; in fact the media used expressions that were never articulated by him. b) Judgment of the Court
53
The Supreme Court of Justice explained that the right to good name and reputation and the right to honour are protected by the Constitution as well as by the Civil Code. In fact, there is a special provision, Art. 484, which protects these rights. The statements included in the text that was read aloud at that public meeting included suspicions, allegations and opinions that could only be understood as an offence to the personality rights of the plaintiff.
54
In conclusion, although a politician’s right to honour is less protected than an ordinary citizen, there are limits that have been overstepped in this case. Therefore, the Supreme Court considered the compensation of € 7,500 as fair and adequate. c) Commentary
55
This case shows that, according to Portuguese case law, politicians also have the right to good name, honour and reputation and that the rights to free speech and criticism, crucial in a democratic society, have limits.16 A direct offence to the honour of a person, as was the case, is a wrongful act and the tortfeasor is liable for damages.17 7. Supreme Court of Justice, 12 October 2006: Damage; Loss of Student’s Earning Capacity a) Brief Summary of the Facts
56
Due to a traffic accident, the plaintiff, the passenger of a car, was injured. He then sued the owner of the car’s insurance company, even though the car had been driven by the owner’s son.18 16
17
18
The European Court of Human Rights condemned the Portuguese State for violation of Art. 10 of the Convention (freedom of speech), in the decision of 23 January 2007 Almeida Azevedo v. Portugal. However the facts of the case were substantially different from the case described above. For recent literature concerning personality rights: P. Pais de Vasconcelos, Direito de Personalidade (2006); G. Dray, Direitos de Personalidade – Anotações ao Código Civil e ao Código do Trabalho (2006). Concerning motor vehicle insurance see A. Soares/J. Santos/M. Mesquita, Seguro Obrigatório de Responsabilidade Civil Automóvel (3rd ed. 2006).
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The injured person was a 19-year-old engineering student. After the accident he received medical treatment; however, he has a permanent lesion in his right knee and leg and long scars, evaluated to constitute 25% permanent impairment. He also claims compensation for pain and suffering. Due to these injuries it will be more difficult to exercise his (potential) future profession as an engineer. He proved some other pecuniary losses.
57
The court of first instance condemned the defendant to pay compensation (€ 33,510.23 plus interest) and the Court of Appeal increased the compensation to € 77,010.23 plus interest. Both parties appealed to the Supreme Court.
58
b) Judgment of the Court
There was no disagreement concerning the fault of the driver, causation, nonpecuniary losses and pecuniary losses. The Supreme Court of Justice only had to decide whether the future damage shall be evaluated at € 112,500 (as the claimant argues) or € 20,000 (as the insurance company argues), which corresponds to the loss of earning capacity.
59
Future damage must be certain or predictable (Art. 564(2) CC), but the court may decide on grounds of fairness (Art. 566 (3)). The Supreme Court considered that this impairment did not constitute a complete impossibility of exercising the profession of an engineer and thus denied the idea of using a probable average salary – be it € 500 (as the court of first instance used) or be it € 1,000 (as the Court of Appeal decided) – to evaluate the damage. On the other hand, the Supreme Court considered that the plaintiff would experience greater difficulties in exercising his (potential) profession and thus, on grounds of fairness, ordered compensation of € 55,000 for loss of earning capacity.
60
c) Commentary
The Supreme Court rejected the idea of using a probable average wage of an engineer. The Court preferred to use the criteria of fairness, because the plaintiff may become an engineer, but he (only) will have more difficulties in exercising that profession or any other job. Nevertheless, it is very hard to understand why € 55,000 is appropriate, since the criteria are not clear.19
61
The Court used the concept of “danno biológico”, which is being developed by forensic medicine and civil law. This decision proves that there is still a long way to go in order to have clear criteria for evaluating these losses.20
62
19
20
For the topic of future damage, see M.M. Veloso, Children as Victims under Portuguese Law, in: M. Martín-Casals (ed.), Children in Tort Law Part II: Children as Victims (2006) 209 ff. F. Lucas, Avaliação das Sequelas em Direito Civil (2006). This book provides extensive research on legal medicine concerning the evaluation of personal injury in civil law.
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8. Supreme Court of Justice, 7 November 2006: Loss of Earning Capacity; Non-Pecuniary Damage a) Brief Summary of the Facts
63
The plaintiff, a 35-year-old man, was injured in a traffic accident. He suffered a general impairment of 30% and was permanently incapable of exercising his profession (mason). He had received a salary of € 750 a month. He claims compensation for pain and suffering and pecuniary damages, including loss of earnings.
64
The Court of Appeal ordered compensation of € 112,693.35, being € 84,795.64 for pecuniary damage and € 12,500 for non-pecuniary damage. b) Judgment of the Court
65
Concerning loss of earning capacity, the Supreme Court stated that reference should be made to the statistical data of the United Nations (World Statistics, Department of Economic and Social Affairs, Series V, no. 27). According to this document, a male person, in Portugal, in 2006, has a life expectancy of 73 years and not 85 years as the plaintiff argued.21 Moreover, the loss of earning capacity shall not be considered until the end of the “expected” life, but only until the retirement age. On the other hand, the Court added that the plaintiff could exercise a different profession which is physically less demanding. Thus the decision of the Court of Appeal concerning pecuniary damages was upheld.
66
Concerning non-pecuniary damage (Art. 496 CC), the Supreme Court increased the compensation to € 20,000. c) Commentary
67
Portuguese case law may use the United Nations statistical data to calculate life expectancy as a criterion to evaluate future damage, notably loss of earning capacity.
68
Concerning non-pecuniary damage, the Supreme Court increased the amount of compensation, which was still relatively low from a comparative perspective. This reflects the growing tendency to increase the amount of compensation for non-pecuniary losses which has been observed over the last few years. What one may criticise is the fact that the Supreme Court did not state any special justification for increasing the amount of non-pecuniary damages from € 12,500 to € 20,000.22
21 22
Life expectancy of women in Portugal in 2006 was 80 years. See more case law in R. Rangel, A Reparação Judicial dos Danos na Responsabilidade Civil (Um Olhar Sobre a Jurisprudência) (3rd ed. 2006).
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C. LITERATURE 1. Manuel Carneiro da Frada, Direito Civil – Responsabilidade Civil – O Método do Caso (Almedina, Coimbra 2006) This textbook is dedicated to tort law, i.e. extra-contractual liability, whereas traditional Portuguese textbooks are normally dedicated to the law of obligations in general. With the modernization of the course of law that is being operated due to the Bologna Declaration, this book aims at creating the basis of a discipline of one semester to be taught in advanced degrees at the Faculty of Law. The author includes several topical issues, such as pure economic loss, organisational fault, loss of a chance, injuries suffered by a third party, liability for information and responsibility for “good governance” of companies. Moreover, the author proposes the case-method as the model of teaching civil law, breaking with the dogmatic and theoretical approach of traditional continental law scholars.
69
2. Paula Meira Lourenço, A Função Punitiva da Responsabilidade Civil (Coimbra Editora, Coimbra 2006) The punitive function of tort law is the title of this thesis, where this difficult issue is discussed from a comparative perspective. Although it is contrary to the Continental tort law tradition, where Portuguese law is included, the author points out some aspects where this punitive function is to be seen in civil law. The author considers that the punitive function of tort law is to be observed in civil law in some cases: (1) the paramount foundation of tort law is fault (Art. 483); (2) in some circumstances the court may determine damages according to fairness (Art. 566 (3)); (3) there is a general irrelevance of the potential cause (causa virtual); (4) non-pecuniary damage is compensated and often courts award compensation for non-pecuniary losses with the intention of punishing the wrongdoer; (5) in case of delay of the debtor, she/he falls in a negative position (automatic obligation to compensate in case of pecuniary obligations, perpetuatio obligationis in obligations of delivery) (Art. 804 ff.); (6) Portuguese civil law provides the so-called “astreinte” (compulsory obligation) (sanção pecuniária compulsória (Art. 829-A)); (7) there are other cases of “punishment” in civil law in the area of property law (e.g. Art. 1320), copyright law, labour law environmental law, and (8) Portuguese law accepts the penal clause (Art. 810) and the “arras” (Art. 442).
70
As a general thesis, the author argues that the punitive function of tort law shall be accepted, notably in the case where the wrongdoer acted with intention and receives profits higher than the damage of the injured person.23
71
23
M. Miranda Barbosa, Reflexões em torno da Responsabilidade Civil: Teleologia e Telonomologia em Debate, Boletim da Faculdade de Direito (2005) Vol. LXXXI, 511–600, in a more philosophical approach discusses similar issues. The author disagrees with the possibility of punitive damages in Portuguese tort law.
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3. Gabriela Figueiredo Dias, Fiscalização de Sociedades e Responsabilidade Civil (Coimbra Editora, Coimbra 2006)
72
This book concerns the supervision of corporations and tort liability of the members of supervision bodies, according to Decree-Law 72-A/2006, of 29 March, which changed the Code of Corporations (Código das Sociedades Comerciais). These changes take into consideration the principles of corporate governance. The author analyses the new supervision organic structures and identifies the main innovations in the field of tort liability of the members of the supervisory boards. The new Act established the specific duties of care and loyalty of the members of supervision bodies. The scope of such duties as regards wrongfulness and fault is discussed. Moreover, the exemption clause (Art. 72 (2)), which is a business judgment rule clause, is analysed. The author argues that such norm is to be considered as a justification clause, that is, it eliminates wrongfulness. Finally, there is an analysis of the mandatory “pledge” or, as an alternative, compulsory liability insurance. This norm creates several doctrinal, as well as jurisprudential difficulties, which are discussed. 4. Mafalda Miranda Barbosa, Liberdade vs. Responsabilidade: A precaução como fundamento da imputação delitual? – Considerações a propósito dos “cable cases” (Almedina, Coimbra 2006)
73
This book concerns pure economic loss, in particular the cable cases. The author analyses the problems of wrongfulness from a comparative perspective. Since the Portuguese system, inspired by the Ihering system of wrongfulness, has a narrow scope, pure economic losses can only be compensated under very limited circumstances. The author explores several possibilities such as the violation of protective rules (Art. 493 (1) CC), the contract with effect towards third parties and, especially, the abuse of a right (Art. 334 C). This academic monograph provides broad philosophical and comparative research in the area of pure economic loss. 5. Armando Braga, A reparação do dano corporal na responsabilidade civil extracontratual (Almedina, Coimbra 2005)
74
Personal injury in tort law is an important subject in Portuguese literature and case law. This monograph provides a detailed analysis of body damage or personal injury, including non-pecuniary and pecuniary dimensions. A comparative law approach is taken, taking into account Italian, Spanish and French law in particular.
XX. Slovakia Anton Dulak
A. LEGISLATION 1. Act 215/2006 Zbierka zákonov (Collection of Acts, Z. z.) of 15 March 2006 Concerning Compensation of Victims of Violent Crimes The Act is an implementation of Council Directive 2004/80/EC of 29 April 2004 on compensation for crime victims. The Act came into effect on 1 May 2006.
1
The Act provides for one-time monetary compensation (“compensation”) to victims of violent intentional crimes (“crimes”) who suffered bodily harm (§ 1).
2
For the purpose of the Act, the victim is a person who suffered bodily harm resulting from criminal activity. The surviving spouse and/or surviving child, and in their absence the surviving parent, can also be considered victims if a person died as a result of a crime (§ 2 sec. 1).
3
Bodily harm defined by law may be assault/common assault and aggravated assault/grievous bodily harm, death, rape, sexual assault and sexual abuse caused by a criminal activity committed by another person (§ 2 sec. 2).
4
The victim can claim compensation:
5
• • •
after final judgment or court order concerning the offender convicted of a crime causing bodily harm; after final judgment of a person found not guilty of a crime by reason of insanity or minority where the damage has not been compensated in any other way; where the results of investigation raise no doubts about the crime having been committed and causing bodily harm, provided, however that the offender is unknown, his/her whereabouts are unknown or his prosecution is obstructed by an unknown obstacle.
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6
For the calculation of compensation, the rules concerning compensation for pain and social hardship apply as appropriate1. There is a special method for calculating compensation in cases of death resulting from criminal activity; in such case the victim has the right to claim compensation equal to fifty times the minimum wage. A victim who has suffered damage as a result of rape or an act of sexual assault has the right to claim compensation for moral damage equal to ten times the minimum wage (§ 5 sec. 1).
7
The amount of compensation is limited – the victim can be compensated by a limited amount of money representing the difference between the amount of compensation calculated under this Act and the aggregate of all amounts paid to the victim as compensation for bodily harm. The total amount of compensation under this law cannot exceed fifty times the minimum wage (§ 6).
8
Under § 5 sec. 4, compensation for rape or sexual assault does not preclude possible compensation for moral harm caused by the same criminal offence. Some uncertainty arises as to the term “moral harm” as it is not defined by the current legislation.
9
Compensation is determined and paid upon the victim’s written request to the Department of Justice of the Slovak Republic. The request must be filed within eight months after the commission of the crime causing bodily harm. Requests made later will not be processed.
10
The Act imposes a duty on the victim who has been compensated to deliver to the account of the Department of Justice all the money obtained as compensation for bodily harm in a way other than by this Act to the amount of compensation granted under this Act. The Act provides for the termination of this duty (§ 14 sec. 2) and the conditions under which the state can waive the right to claim the amount back (§ 14 sec. 3). 2. Regulation of the Nuclear Regulatory Authority of the Slovak Republic No. 58/2006 Z. z. Providing for the Details Concerning the Scope, Content and the Method of Preparation of Documentation by Nuclear Facilities Required for Various Decisions
11
As provided by § 17 sec. 3, § 18 sec. 5, § 19 sec. 9, § 20 sec. 7 and § 22 sec. 6 of Act 541/2004 Z. z. on the peaceful use of nuclear energy (the “Nuclear Act”), the Nuclear Regulatory Authority of the Slovak Republic (the “Authority”) specified, inter alia, the meaning of a document to secure financial coverage of liability for nuclear damage.
12
Under § 23 of the Regulation, a document securing the financial coverage of liability for nuclear damage is a written document by which the applicant seeking a license has secured financial resources to cover liability for nuclear damage up to the limit set forth by § 29 sec. 6 of the Act. Such document may 1
Act 437/2004 Z. z.
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have the form of an insurance policy or a unilateral declaration of the insurer in case of insurance, a bank guarantee or another written document in cases of other financial security representing an indisputable proof of sufficient financial coverage of liability for nuclear damage as prescribed by law for the applicants seeking a license. Such documents must show sufficient financial coverage of liability for nuclear damage as of the date of starting the operation of the nuclear facility and for the duration of the license. 3. Act 342/2006 Z. z. Concerning Drugs and Medical Devices Under § 18, a decision granting registration of a medication does not release its producer of civil liability and criminal responsibility for a possible harm resulting from the use of the medication in compliance with the summary of approved characteristic features of the drug and/or the written information for the drug user.
13
4. Act 221/2006 Z. z. on Custodial Detention/Imprisonment This Act provides for liability for damage caused by detainees/inmates to public property administered by prison institutions. This Act makes a distinction between general liability of inmates for the damage resulting from a breach of duty during their imprisonment term (§ 51) and liability of inmates for damage caused while performing work tasks (§ 52).
14
General liability of inmates for damage is special because if the damage does not exceed a triple amount of the minimum wage, compensation for the damage is to be determined by the prison governor.
15
§ 53 deals with liability for damage caused by inmates performing work tasks. As a rule, the Labour Code governs liability in the performance of work tasks and directly related activities. Under the Act on Custodial Detention/Imprisonment, cleaning work (§ 30 sec. 1 letter j) is not considered performance of work tasks, and the prison administration is responsible for any damage, as provided by the Civil Code (§ 53 sec. 2). Liability under the Civil Code, unlike strict and objective liability under the Labour Code, is based on presumed fault, and it is possible to be released of liability.
16
5. Act 184/2006 Z. z. Concerning Genetically Modified Agricultural Production Effective as of 1 June 2006, the Act provides for compensation for the damage caused by contamination related to modified agricultural products. Under § 12 of the Act, the injured has the right to claim compensation for the undesirable presence of modified agricultural products and/or emission of their parts from the producer of such products.
17
The Act defines emission of parts of modified agricultural products (§ 2 letter k) and their undesirable presence (§ 2 letter m).
18
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Anton Dulak
19
The emission of parts of modified agricultural produce means the presence of parts of modified agricultural products outside the registered production area designated for growing modified agricultural products. Undesirable presence means the accidental presence of genetic material of modified agricultural products in the products grown under conventional conditions or ecological production, the value of which is higher than the value fixed by a special regulation.
20
The Act on Genetically Modified Agricultural Production contains no special liability provisions and makes reference to liability governed by the Civil Code and the Commercial Code. With liability defined differently in the two Codes, this vague and confusing situation proves to be unacceptable for practical application. It should be noted here that the provisions of the Civil Code referred to by this Act (§ 420a) define liability irrespective of who is at fault. It is possible to be relieved of liability if it can be shown that the damage was caused by unavoidable circumstances not resulting from the operation or acting of the injured party. 6. Act 231/2006 Z. z., Amending Act 312/2001 Z. z. on Civil Service
21
This amendment makes partial changes in the rules governing compensation for damage caused by civil servants who are liable to compensate the Civil Service Authority. The principle that a civil servant is liable to compensate the actual damage to the Civil Service Authority remains unchanged. Similarly unchanged remains the definition of “compensation of the actual damage”, i.e. the amount of damages as determined by the Authority or a superior authority.
22
This amendment introduces some limitations to compensation for the damage caused by a civil servant’s negligence. Under § 115 sec. 2, compensation for damage in such case cannot exceed an amount equal to an amount three times his/her salary prior to the breach of duty causing the damage. This limitation does not apply in cases of special responsibility of a civil servant governed by special law2 or where the damage was caused under the influence of alcohol, narcotic drugs or psychotropic substances.
23
Under § 116 sec. 1, the Civil Service Authority must claim compensation for which a civil servant is responsible. The Authority may abstain from claiming the rest of the compensation where the civil servant has already paid at least two thirds of the compensation determined by the Authority. This does not apply to damage caused by the intentional conduct of a civil servant acting under the influence of alcohol, narcotic drugs or psychotropic substances or to damage in cases of special responsibility.
24
The civil servant responsible for damage must compensate the Civil Service Authority in monetary damages, unless the damage has been corrected by res2
§ 182–185 of the Labour Code (so-called Agreement of Material Responsibility).
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toration to previous state. The option is to be decided by the civil servant (not the entitled), but the law gives preference to compensation by restoration in monetary damages3.
B. CASES 1. Judgment of the Supreme Court of the Slovak Republic of 27 October 2004 (Case No. Obdo V 15/2003) Published in the Collection of Supreme Court Decisions Under No. Ro 8/2006: Loss Caused by an Operational Activity a) Brief Summary of the Facts
The plaintiffs, the heirs to the estate of a deceased person, sought a determination on the defendant’s debt of SKK 490,000, USD 4,690, as a part of the estate of the deceased. The court of first instance dismissed the claim on the grounds that the relationship between the plaintiffs’ legal predecessor and the sued bank is governed by § 700 ff. of the Commercial Code. The liability of the bank for damage caused by the loss of the items kept in the safe is a strict liability. A condition for a successful exercise of the right to obtain compensation lies in proving that the loss occurred to the extent claimed. The court held that the occurrence of the loss was not sufficiently proven.
25
The plaintiffs appealed against this judgment.
26
The Supreme Court of the Slovak Republic, acting as a court of appeal, reversed the decision of the court of first instance and ordered the defendant to pay SKK 490,000 to the plaintiffs.
27
The defendant sought a review of the decision of the court of appeal, maintaining that the bank concluded a contract of the use of a bank safe with the plaintiffs’ legal predecessor and that, according to this contract, the bank provided no guarantee for the safety of the contents of the safe and did not keep any record of its contents. The defendant also held that the safe was opened as a result of a technical failure. This was an event, argued the defendant, that occurred independently of the defendant’s will and the defendant could not have prevented this incident from occurring despite every possible effort that could be objectively expected from the defendant. The plaintiffs tried to have this review denied.
28
The Supreme Court of the Slovak Republic, acting as a court of review, decided, without holding any public hearing, that the challenged decision of the court of appeal is wrong.
29
3
This compensation differs from compensation governed by the Civil Code. Under § 442 sec. 3 of the Civil Code, compensation must be paid in monetary damages; however the injured party may also seek compensation by restoration of the damaged property into its previous state.
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b) Judgment of the Court
30
A contract on the use of a bank safe is a contract best described as one not regulated as a certain type of contract (§ 269 sec. 2 of the Commercial Code or § 51 of the Civil Code). If the safe user suffered a loss caused by an operational failure of the safe, this is a loss caused by an operational activity and the bank is liable for the loss as provided by § 420a letter a) of the Civil Code. c) Commentary
31
In the course of gathering evidence, it was necessary to determine the legal status of the “Contract of the Use of a Bank Safe”. The form of such contract is included neither in the Civil Code nor in the Commercial Code. Due to its content, this contract resembles a contract on safe-keeping of valuables under § 700 ff. of the Commercial Code, or the contract of safe-keeping under § 747 of the Civil Code. In the opinion of the Court, however, the contract in question did not contain all the features of either of them.
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The fact that the bank does not inspect or record the contents of the safe leads to the conclusion that the contract is a so-called contract not regulated as a certain type of contract and the relations arising from it are governed by the provisions agreed by the parties to this contract.
33
The contract unquestionably imposed a duty on the bank to provide the user with a safe that must fulfill its fundamental function: to prevent access to the safe to any third (unauthorized) persons. During evidence taking it became clear that this function was not fulfilled in the specific period of time during which any person not possessing the key to this safe could open it. If, as a result of the safe failure, the user sustained a loss, it was the result of an operational activity, and the bank’s liability arose under § 420a sec. 2 letter a) of the Civil Code. As this event resulted in a loss caused by an operational activity, the defendant could be relieved of liability only if the bank could prove that the loss was caused by the activity of the injured party. 2. Judgment of the Supreme Court of the Slovak Republic of 17 August 2004 (Case No. 2 To 21/2004) Published in the Collection of Supreme Court Decisions Under No. Rt 2/2006: Non-Pecuniary Damages a) Brief Summary of the Facts
34
Within criminal proceedings, the victim sought compensation for the loss of SKK 109,227.60 incurred due to funeral expenses (§ 449 of the Civil Code). In addition, the victim also claimed compensation for psychological and moral injuries in the form of monetary satisfaction of SKK 150,000.
35
The trial court dealing with the case (Regional Court) referred the victim’s claim for compensation to civil proceedings.
36
The victim appealed against this decision. In his appeal he did not challenge the reasons concerning the claim of funeral expenses, but rather maintained that
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the decision of the Regional Court, which stated that non-pecuniary damages should be sought through civil proceedings, was wrong. The victim claimed that, under § 43 sec. 1 of the Code of Criminal Procedure, the victim can, among others, be a person who has suffered non-pecuniary, moral or other loss. The right of the victim to initiate criminal proceedings and seek compensation for the loss under § 43 sec. 2 of the Code of Criminal Procedure is applicable not just to non-pecuniary damages. This provision describes compensation for damage in general and thus it can be inferred from the interpretation of § 43 of the Code of Criminal Procedure that the right of the injured person/victim to initiate criminal proceedings and seek compensation is applicable also to compensation of non-pecuniary damage or for other losses. Therefore, the victim maintained that the criminal court can, as part of the judgment, order the defendant to also compensate the damage other than the actual pecuniary loss. The Supreme Court, acting as a court of appeal, upheld the decision of the Regional Court as correct.
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b) Commentary
In its reasoning for its decision, the Supreme Court of the Slovak Republic upheld that a claim for non-pecuniary damages cannot be made during collateral/ adhesion proceedings. The interpretation of § 43 of the Code of Criminal Procedure that a criminal court can, as part of the judgment, order the defendant to compensate also other losses is not in compliance with the current legislation.
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The claim made by the victim is of a non-pecuniary nature, which is not the same as a pecuniary loss enforceable through criminal proceedings and which cannot be considered to be just another damage or loss. It can apply only to harmed rights resulting, for example, from criminal activity under § 209 of the Criminal Code, but not in the meaning defined by substantive law.
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The claim sought by the victim can be considered compensation for emotional stress and pain caused by the death of a close relative. Such claim can arise from a violation of the right to privacy and family life (Art. 8 par. 1 of the Convention on the Protection of Human Rights and Fundamental Freedoms). Interference with the emotional affairs of a person as a result of the death of a close relative constitutes, under certain conditions, the right of the victim to claim protection pursuant to the provisions of the Civil Code providing for the protection of personality (§§ 11–16), including also a possibility to claim compensation for non-pecuniary loss in monetary damages under § 13 sec. 2 of the Civil Code.
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Anton Dulak
C. LITERATURE 1. P. Kerecman, Právo na primerané zadosťučinenie a náhradu nemajetkovej ujmy v slovenskom právnom poriadku (Right to Reasonable Satisfaction and Compensation of Non-Pecuniary Damage Under Slovak Legislation) Part I, Part II, Justičná revue č. 8–9/2006, č. 10/2006
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At present Slovakia has over thirty legislative enactments applying to claims to reasonable satisfaction. These cover rules and regulations of different legal force in the field of civil, commercial, labour, anti-discrimination laws, and the rules governing copyright and industrial property. Although it is in the interest of certainty of law and legal culture in general that the same terms be defined in the same way in different branches of law, this is not the case in the Slovak legislation. 2. J. Lazar et al., Občianske právo hmotné (Civil Substantive Law) (Iura, 3rd ed. 2006)
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The third edition of the textbook covering civil substantive law reaches far beyond its original purpose, as it is a book of authority of great significance in the given field. Written by a collective of authors who are scholars from all public law schools in the Slovak Republic, this third modified edition describes all legislative changes in the period until the end of 2005. The book, presenting the interpretations of EU Directives implemented into Slovak law, analyzes some private efforts to establish the principles of private European law. Therefore this book is an important source of law not only for law students but also for legal practitioners.
XXI. Slovenia Rok Lampe
A. LEGISLATION 1. Act on Protection of the Right to Fair Trial The Act on Protection of the Right to Fair Trial is a natural consequence of the main problem that the Slovenian legal system is facing – long and ineffective litigations. Due to hyperinflation of actions brought against Slovenia at the European Court for Human Rights, the Slovenian legislator introduced an “emergency act” which will try to limit further complaints in Strasbourg. Of course the enormous number (around 700 pending claims) of actions is based on art. 6 of the European Convention on Human Rights and Fundamental Freedoms. The right to fair trial based on this provision includes, according to continuous legal practice, also the right to speedy and effective civil litigation. This crucial element of civil law in general also became one of the most important political issues, especially from the perspective of who is responsible for this overwhelming situation and how to deal with it. In my opinion, the major factor can be traced to the complaint procedure and even broadly, to the role of attorneys in litigation. The Civil Procedure Act namely foresees complaints against the first instance judgments in a very liberal way which is connected to the entrepreneurial logic of attorneys. There is probably not even one civil litigation action in which parties are represented by attorneys that is not “tested” at the appellate court. Most complaints are basically “shots in the dark” because the appellate courts are obliged to test the first instance judgment ex officio (of course if a complaint was brought). Logically an attorney has consequently nothing to lose by bringing a complaint – either way he is going to “win” and clients (who lost in the first instance) are keen on complaints. Therefore extremely long and ineffective civil litigations do not result just from vague civil procedure rules, but from deeper practical relations in our legal system.
1
Nevertheless the current government tried to limit the number of international complaints by introducing this law which is designed to compensate parties who had to endure an unreasonably lengthy procedure. Legal tools to achieve the protection of the right to a (fair) speedy and effective trial are the following:
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complaint with a proposition to accelerate the subject (supervisory complaint); proposition to determine the time limit of the subject (time limit proposition) and claim for just satisfaction.
3
The most interesting claim for our topic is of course the last one. It is regulated by chapter 3 of the Act (Rights and the Procedure Regarding Just Satisfaction). The Act foresees the claim for just satisfaction as secondary. It is conditional upon the supervisory complaint and the time limit proposition, which means that the claimant has to file either one of these before bringing the just satisfaction claim.
4
The Act on Protection of the Right to Fair Trial determines that just compensation as a special type of damages can be awarded: • • •
as a monetary compensation for the damage suffered by the violation of the right to a fast and effective trial; with a written statement by the State Attorney (Državno pravobranilstvo) that the claimant’s right to a fast and effective trial has been violated; with the publication of a judgment, stating again that the claimant’s right to a fast and effective trial has been violated.
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Compensation in money, as mentioned, has to be considered a special type of damages that is regulated separately from the Code of Obligations. This “lex specialis” theoretically depends on the theory of compensation for violation of personality rights which in the Slovenian legal system is based on the direct applicability of constitutional provisions (better known as the “unmittelbare Drittwirkung” effect). The Slovenian Constitution protects special personality rights (art. 36) with a general diction “In Slovenia personality rights and the right to privacy are protected by law” as are special personality rights, among them the right to a fair trial. The legal foundation of the special personality right to a fair trial has therefore to be traced to the Constitution (with its direct effect) as well as to art. 6 of the European Convention on Human Rights which is directly applicable through art. 8 of the Constitution.
6
According to the Act on Protection of the Right to Fair Trial, a special fund from which the claimants are to be compensated is to be established. This system has already been introduced in Slovenia with, for example, the Crime Victims’ Compensation Act and the Asbestosis Compensation Act.1 What the government does with the establishment of such compensation schemes is to concentrate compensation claims for violation of the right to a fair trial in its own jurisdiction. The advantages from the point of view of potential claimants are simplicity and effectiveness of the procedure, compared to the Strasbourg procedure. 1
Such a “superfund” system was successfully used in the United States in environmental compensation and toxic tort issues with CERCLA.
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The Act is based on the theory of strict liability. The State is namely objectively responsible for the damage suffered through its court system. Hence the Act foresees also limited liability, with damages varying from € 200 up to € 5,000 for violation of the right to a fair trial. The competent authorities deciding on the issue of a fast and effective trial have to consider all the special circumstances of each case, especially its factual complexity and legal point of view. In addition, also the use or abuse of procedural rights by parties and acts of the court, such as rules on priority of certain cases, rules on sequences and implementations of time limits for preparations of judgments will be examined.
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I will briefly just mention the other two tools which also have to be considered as a special type of damages. First, the written statement of the State attorney constitutes moral satisfaction. This type of satisfaction for non-pecuniary loss does not offer any monetary compensation. In cases of serious violations of the right to a fair trial, this claim can also be followed with a just satisfaction claim. The second tool, publication of a judgment, is also a type of compensation for non-pecuniary loss, which would satisfy the injured party in the eyes of the public. The Act determines that publication of the judgment is applicable to less serious violations of the right to a fair trial; it can also be used cumulatively with the claim for just satisfaction in cases of serious violations. The publication has to include the name of the claimant, with a statement that his right to a fast and effective trial has been violated. The judgment is to appear on the Court’s website continuously for 2 months.
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2. Act on Forwarding the Consequences Related to Work with Asbestos The next Act following the fund-compensation scheme introduced in Slovenia in 2006 is the Act on Forwarding the Consequences Related to Work with Asbestos. This Act is designed to define professional diseases related to work with asbestos, to offer a model of compensation for the damage suffered as a result of working with asbestos and to regulate the right to an invalidity pension. The Act precisely defines asbestos and asbestos products in art. 3 and diseases caused by asbestos in art. 4. Persons who are entitled to rights guaranteed by this law are those who were employed in enterprises that worked or built with asbestos, stored or removed asbestos or asbestos products and were actually exposed to asbestos. The Act on Forwarding the Consequences Related to Work with Asbestos widens the circle of potential claimants to persons who were infected with mesothelioma due to exposure to asbestos in the territory of Slovenia.
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The Act on Forwarding the Consequences Related to Work with Asbestos foresees a lump sum model of monetary compensation. The conditions for compensation are the following:
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• • •
the claimant must show that he satisfies the personal conditions mentioned above; the compensation is determined by a special administrative procedure; in cases where a disease is not determined within the framework of art. 9 of the Act or in cases where a special agreement on compensation has not
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been reached, the claimant has to bring a civil action in order to be compensated.
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The lump sum compensation is classified according to the severity of the disease, set in the following scheme: • • • • •
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corpulent pleura – maximum € 11,875 benign pleura effusion – maximum € 12,920 chronic pleura effusion – maximum € 15,420 asbestosis – maximum € 20,840 lung cancer, malignant mesothelioma and other types of cancers resulting from the use or exposure to asbestos – maximum € 41,660.
The lump sum compensation awarded must be determined taking into account the expected development of the disease, the decrease of vital functions (divided into insignificant, slight, middle and severe decrease) and the age of the claimant. 3. Act on Changes and Completion of the Media Act
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The Media Act, enacted in 2001, has been changed after a long political debate which also resulted in a referendum on a closely related Slovenian Public Television Act. Why do I include the Media Act in a report on tort issues? The Slovenian Media Act namely includes provisions on the right to corrigendum and the right to public reply, which are regulated in chapter 6 of the Act. The Act on Changes and Completion of the Media Act introduced some crucial changes to this subject matter. The current government, which proposed the changes and completion, maintained that the Media Act did not offer enough protection towards the media. In my opinion, the changed Media Act, from a civil law point of view, offered sufficient protection to the individual against the almighty media, but, on the other hand, it is true that these legal instruments were not used very often. The crucial change that was made, which is in my opinion also the main objective of the new media law regime, is that the Media Act shifts the right to corrigendum and the right to public reply from the private law to public law. In particular, the new provision – art. 148a – foresees an administrative penalty for the media if the editor does not publish the corrigendum, which he received in the prescribed time limit or which was not rejected properly (according to art. 27 and 31). The foreseen administrative penalty for the responsible editor ranges from € 400 to € 4,000 whereas the penalty for the media varies between € 2,000 up to € 6,300. Of course an administrative penalty is not the only possibility that the claimant has towards the media. In cases where the claim for corrigendum or public reply was rejected by the media, the claimant has to bring a civil action before the District court.
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Another major change has been made to supplement the very broad provision that the corrigendum has to be published in a similar form in which the information, against which the corrigendum was filed, was published. This more or less corresponds to the wording of the changed Media Act. New provisions clarify what is a “similar form”. Art. 27, par. 5 defines that, in cases of printed
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media, a corrigendum is appropriately published if the corrigendum is published on the same page and in the same rubric as the previous information. If the original information was published on the front page, then either the corrigendum has to be published on the front page or a note pointing out that the corrigendum is included inside the paper should appear on the front page. This note must include the information that this is a corrigendum and at least the subject of the corrigendum and, in cases where a name was published in the original information, then also the name of the claimant. From the procedural perspective, the claim for corrigendum has to be filed within 30 days. The original information has to violate either the personality rights or interests of the claimant. The responsible editor has to publish the corrigendum which can also include information in support of “his part of the truth”. In cases of periodical media, the corrigendum has to be published in the next edition if the corrigendum was received 2 weeks before the publication. In cases of other media, the corrigendum has to appear in the next publication or the next relevant edition after the receipt of the corrigendum; in cases of electronic media in 48 hours.
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The responsible editor has to publish the corrigendum except in the following cases:
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• • • • • • • •
if the claim for corrigendum does not respond to the original information; if the claim for corrigendum does not deny in any way the previously published information; if publication would be contrary to the Media Act (violent, discriminative, etc.); if the claim is not signed by the responsible person; if the claim is written in insulting language; if the corrigendum is unreasonably longer than the original information; if the claimant missed the set time limit; if a court is still debating on a pending case in this subject matter.
The responsible editor has also to reject the claim for corrigendum in the time frame mentioned above. If he does not do so, he can be fined with an administrative penalty. Hence the claimant can report this minor offense to the Media Inspectorate and also bring a parallel civil action demanding publication of the corrigendum. The action has to be brought to the District civil court, which is obliged to a priority debate. The time limit for filing the civil action is 30 days. The defendant must reply to the action within 8 days after receiving the action. The court must react within 45 days with the first session. The parties also have the right to appeal in a very short time (3 days) to the appellate court, which has to decide on the appeal also within 3 days. The Media Act foresees no revision in such litigation.
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4. Act on Changes and Completion of the Copyright Act This Act does not interfere with tort law provisions of the original Copyright Act. However, I would like to point out some highlights. The Copyright Act
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foresees a number of possibilities regarding copyright protection. These can be divided into general claims – in the first place the compensation claim, which is based in the Code of Obligations and special claims defined in this Act. If we continue with compensation issues, the Copyright Act, as the only civil law regulation, includes a civil penalty (“civilna kazen”). Art. 168 defines the civil penalties in cases where the tortfeasor acted negligently while violating the applicant’s copyright. In such cases the applicant can claim payment of set or customary payment or claim compensation for the illegal use of his copyright which can be extended up to 200% of the original value of the work, regardless of whether the owner suffered any pecuniary loss or not. By deciding on the amount of civil penalty – which can vary to a maximum of 200% – the court has to take into consideration all circumstances of the case, especially the degree of the defendant’s fault, the value of the work or customary payment as well as the preventive function of the civil penalty. In cases where pecuniary loss can be established and this loss is higher than the awarded civil penalty, then the applicant can demand full compensation – up to the value of the suffered damage.
B. CASES 1. Judgment of the Supreme Court II Ips 165/2005: Lightning Strikes Telecommunication Network a) Brief Summary of the Facts
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A bolt of lightning struck the telecommunication network whose owner and operator is the defendant. The lightning passed through the telephone wire and injured the applicant. The first instance court, affirmed by the appellate court, found that the required earthing mechanism, as a form of basic protection against lightning, was not sufficient.
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The applicant suffered bodily harm – inflammation of the cornea and iris in his right eye and, therefore, he had to wear artificial lenses in his right eye. He additionally suffered an injury to his right ear, which led to partial deafness. b) Judgment of the Court
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The first instance court found that the defendant is liable for the occurred damage, according to art. 154 of the Act on Obligational Relations, because he failed to ensure the necessary protection – by installing a proper earthing mechanism. The theory upon which the court found its ruling is fault based. It required that the defendant, as an expert, ought to act with professional diligence and therefore control the earthing. It was namely proven that the resistance of the net was at the time of the accident far beyond its limit, defined by special sub legislative act. The applicant was consequently awarded € 14,583 in damages for pecuniary and non-pecuniary loss.
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c) Commentary
The defendant filed a complaint for revision, stating that the courts used the wrong theory of liability. He argued that the applicable theory should be strict liability. The defendant wanted to present the lightning as an act of God which would exculpate him from strict liability. He argued that a bolt of lightning is an “external” event and therefore an act which cannot be controlled by the defendant. Such an act must be considered as an act of God, it is namely unpredictable and unpreventable. The Supreme Court did not follow this line of argument, stating that a bolt of lightning is undoubtedly an external event, which cannot be prevented. However, damage resulting from a bolt of lightning could be prevented by professional due care.
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2. Judgment of the Supreme Court II Ips 103/2005: Traffic Accident a) Brief Summary of the Facts
In this case two pedestrians crossed a street between cars that were parked on the pavement. One of the pedestrians was hit by a car which actually followed all the required traffic regulations. The second pedestrian managed to jump to the side. The expert witness confirmed that the parked cars essentially influenced the driver’s view of the street. The injured pedestrian, 53 years old, suffered severe bodily injury – concussion of the brain, broken leg and abrasion of the skin on his face and his left hand. Due to the accident, the applicant also suffered epileptic attacks.
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b) Judgment of the Court
The court found that the pedestrian contributed partially to the damage to an amount of 25%. He could expect a dangerous situation to occur while crossing the street; in additon, due to the cars parked on the pavement, he had to pay more attention. The court awarded the applicant € 4,000 for bodily injury € 2,500 for fear and € 3,500 for mental suffering. Both of the parties appealed and the court of appeals increased the awarded damages for bodily injury to € 4,000. The Supreme Court affirmed the judgments.
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c) Commentary
The main question in this case is the factual situation. It could be argued that the damage could be attributed wholly to the car driver. It can be read out of the case that he was driving within the speed limit (60 km/h). However the street was not clear. Therefore he was obliged to accommodate his speed to the traffic conditions.
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3. Judgment of the Supreme Court II Ips 79/2005: Dangerous Object a) Brief Summary of the Facts
The applicant suffered bodily injury while working for the defendant. Slovenian tort law foresees strict liability of the employer if the worker proves that the damage occurred without his fault. The applicant argued that he slipped
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on a broken step of the defendant’s lorry. This accident happened due to the greasy floor in the defendant’s warehouse. The applicant fell on the floor hitting and injuring his head. b) Judgment of the Court
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The applicant argued that the defendant, by failing to properly clean his floor, acted against the due standard of care (art. 158 of the Act on Obligational Relations). The first instance court did not follow this interpretation and found that the floor was not greasy – actually it was clean. The court therefore rejected the applicant’s claim, arguing that the defendant acted according to the standard of care. The injury was a result of an accident, because the applicant fell because of a reason which was not in the sphere of control of the defendant. The court of appeal as well the Supreme Court affirmed the decision. c) Commentary
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Slovenian tort law practice includes the reversed burden of proof in case employers’ liability is at stake. Therefore the applicant tried to prove that he fell due to a reason in the defendant’s control. This would exculpate himself and the employer could be held liable. The actual reason for the applicant’s injury could be traced to the broken step of the defendant’s lorry. Unfortunately the court did not take this circumstance into account, perhaps also due to the fact that the applicant constantly argued that the accident occurred due to the greasy floor. 4. Judgment of the Supreme Court II Ips 97/2005: Non-Pecuniary Loss, Amount of Damages a) Brief Summary of the Facts
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The applicant suffered a car injury when he was 17 years old. The applicant demanded € 26,000 for the bodily injury and mental distress he suffered. b) Judgment of the Court
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The first instance court awarded the applicant an amount of € 20,000. The applicant appealed and the appellate court affirmed the judgment. He then filed for revision, which was partly accepted by the Supreme Court. c) Commentary
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The Supreme Court awarded the applicant the full amount that he sought in his lawsuit, arguing that the essential circumstance is that the applicant was 17 years old at the time of the accident. In addition, the applicant will suffer from epilepsy for the rest of his life.
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5. Judgment of the Supreme Court II Ips 63/2005: Damages for Unlawful Detention a) Brief Summary of the Facts
That the Slovenian legal system is in a deep crisis is proven not only in civil litigation, but also in criminal law. There have been a number of cases where suspected persons were not sentenced to prison, although the police and the State attorneys tried to convince the public that they were guilty of serious crimes. These cases also enjoyed broad media attention. In this concrete case, the applicant was in detention for nearly six months until the criminal procedure against him was stopped.
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b) Judgment of the Court
The applicant, according to the unlawful violation of his personality right to personal freedom, filed a civil action against the State, claiming that the State violated that right due to unlawful detention. He claimed € 2,500 for emotional distress and € 4,100 for pecuniary loss. These damages were awarded to him by the District court. The decision was confirmed by the court of appeals. The State filed a request for revision. The Supreme Court acted upon art. 377 of the Civil Procedure Act which does not allow revision in cases where the pending claim does not exceed € 4,000. Therefore it rejected separately the revision for emotional distress and also that for the pecuniary loss, finding that the lower courts had acted properly and correctly in awarding the mentioned damages.
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c) Commentary
The crucial question in this case was whether “danger of repetition to commit a crime” is a legitimate cause for detention regardless of the fact that the applicant was not found guilty in the criminal procedure. The State namely argued that it is not liable for the illegal detention, because the detention was approved by the Court which found that it were probable that the applicant would commit a crime again. There is a difference between whether a person is criminally liable and whether a person can reasonably be expected to commit a crime. The State argued that the detention was not illegal and therefore it is not liable for the occurred damage. The Supreme Court did not follow this reasoning which is, in my opinion, questionable, quoting a legal opinion of the General session of the Supreme Court from 1993. It stated – if the cause of the detention is based on the danger of repetition and this is identical to the same cause because of which the criminal charges were brought and the charges have been dropped, then the act of the suspect cannot be seen as illegal. Therefore the State is liable for the damage. What the court says is that, in cases where the detention is based upon a probable cause that the detainee will commit another crime, this could be regarded as the illegality exception to civil claims. Namely the ground for violation of the right to personal freedom is the standard of probable cause, regardless of whether the detainee was found guilty afterwards. The State cannot be exculpated due to the fact that probable cause was established if the detainee was released for the same reasons for which he was detained in the first place.
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6. Judgment of the Supreme Court II Ips 83/2005: Liability of an Attorney a) Brief Summary of the Facts
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The applicant – a trainee attorney – sued the Attorney Chamber, claiming that it is liable in tort due to the fact that it exceeded the reasonable time limit when deciding on the registration in the official register of trainee attorneys. According to the Slovenian Attorney’s Act (Official Gazette, no. 24/2001), trainee attorneys can work with limited authorisation as attorneys. In this case the applicant obviously could not perform his work as a trainee attorney and therefore claimed that the Attorney Chamber is liable for his loss of earnings. He additionally claimed that the Chamber exceeded the reasonable time limit for his registration because it waited more than eight months from the date of his application. The applicant further stressed that the Chamber did this intentionally to annoy him and the Attorney’s firm where he was supposed to work. b) Judgment of the Court
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The first instance court supported by the appellate did not find the defendant liable in tort as the Chamber had immediately registered the applicant after receiving the mandatory opinion of the local attorney’s council. c) Commentary
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It was true that the council needed more than eight months to prepare the opinion. Still the courts considered that the defendant performed its obligation within a reasonable time limit, even though the Attorney’s Act does not foresee any time limit on the registration of trainee attorneys. Both courts did not take the applicant’s argument that the defendant had acted intentionally just to harm him into consideration, because he failed to provide any detailed evidence to support this. The Supreme Court affirmed both decisions, declining the claim for revision. 7. Judgment of the Supreme Court II Ips 517/2005: Severe Disablement a) Brief Summary of the Facts
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The first applicant suffered severe bodily injury and mental distress after a car crash. Due to his serious injury, he became almost completely paralyzed. He claimed € 400,000 for pecuniary and non-pecuniary loss. The second applicants, his parents, each claimed € 6,000 for the mental distress they suffered due to the fact that their son was paralyzed. b) Judgment of the Court
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The first instance court awarded the first applicant a total amount of almost € 50,000. The second applicants were awarded almost € 2,000 each, but only for help and services provided during the treatment of the first applicant. Both parties appealed. The appellate court found that the awarded damages for both applicants satisfied the standard of just compensation. The second applicants
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argued in the request for revision that the first instance court as well as the court of appeals violated the law because, in this concrete case, the consequence of their son’s bodily injury presented serious disablement and therefore they were entitled to a higher compensation award. The expert witness testified that it is not expected that their son will recover again. The Supreme Court rejected the request, stating that in this concrete case the consequences of the accident cannot be defined as “serious disablement”. It based its judgment on art. 2001 of the Act on Obligational Relations, which states that, in cases of serious disablement, also the relatives can be compensated for the non-pecuniary loss due to their emotional distress. c) Commentary
Hence the Supreme Court did not find that this injury could be interpreted as “serious disablement”. The Court stresses that this ruling is an exception which must be interpreted restrictively. The standard is therefore not heavy disablement, not very heavy disablement, but serious disablement. Definitely this standard is hard to interpret and, in my opinion, it is interpreted too narrowly. The Court must also take into consideration feelings of parents or other close relatives. The first applicant cannot walk properly, he has problems with his knees, he is unable to participate in any sport or other activity, he cannot lift more than five kilogrammes, he needs constant care, etc. I do not see why the second applicants could not be compensated for the damage (emotional distress for serious disablement of their close relative) in this particular case. Slovenian legal practice is in this sense very narrow. It defines as serious disablement, for example, tetraplegia (Judgment of the Supreme Court II Ips 323/94), burning of a hand and leg because of an electrical shock which led to severe depression (Judgment of the Supreme Court II Ips 784/94), personal changes with severe decrease of intellectual capability (Judgment of the Supreme Court II Ips 403/98), and complete disablement because of severe brain injury (Judgment of the Supreme Court II Ips 285/97).
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C. LITERATURE 1. Lidija Koman Perenič, The Development of Tort Law in Europe and in Slovenia (Pravnik, Ljubljana 2006, Vol. 61, No. 1–3) The author offers a rich introduction into tort law from a comparative perspective. In the introduction the author goes back in history and presents the punitive function of tort law and its transition to the civil law. Then she compares the remnants of the punitive function in different legal systems of the European countries, including Slovenia. A presentation of the codification of civil law in the 19th and 20th centuries and the classification of countries into legal circles or families then follows. She devotes special attention to the connection of European countries in the Council of Europe, where the Court of Human Rights in Strasbourg discovers violations of human rights and can also award damages, as well as to the connection of countries in the European Union, where the Court of European Communities in Luxemburg determines indemnity for
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damage caused by the organs and/or officials of the European Union, and for the damage caused by Member States.
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In the European Union preparations for the drafting of a European Civil Code, including tort law, were begun in the framework of unification and harmonisation of law. Two groups are working on the preparation of the text to be common and acceptable for all member countries: The Study Group on a European Civil Code, which in February 2004 published draft articles, and The European Group on Tort Law, which published European Principles of Tort Law in May 2003, and in May 2005 in Vienna presented their interpretation, published in a separate book. The author of the article compares the regulation of individual institutions in the works of the above mentioned groups and critically compares it also with the regulation in the Slovenian Code of Obligations and identifies the need for possible changes.
XXII. Spain Albert Ruda
A. LEGISLATION 1. The Challenge of So-Called Megaterrorism As is well known, 2006 tragically ended with a brutal attack carried out by the terrorist organisation ETA at the airport of Barajas, Madrid. The ongoing dialogue with the terrorists had started shortly after they had declared a “permanent” ceasefire in March of the same year. However, on 30 December the terrorists’ atrocity was once again apparent as they detonated a 200 kg ammonal bomb which blew up the whole car park of terminal 4 of this international airport.
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As a result, two citizens from Ecuador – who were by chance having a nap in their cars while waiting for some relatives – were killed. Moreover, substantial material damage was caused to the facilities owned by the public legal entity in charge of them, Aeropuertos Españoles y Navegación Aérea (AENA) and to private property. About 1,000 vehicles, plus the almost brand-new building of the mammoth four-storey car park, were reduced to little more than rubble. In January 2007, 2,077 people had filed an application form to AENA to try to get their cars back.1 The rebuilding of the parking facilities has already been entrusted to the same contractor which built it in the first place. The agreed price of reconstruction is € 24.5 million. Repairing the remaining parts of the terminal, which is to be carried out by other contractors, will cost AENA another € 3 million.2 Apart from this, minor disruptions were suffered by air traffic as a result of the attack.
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Spain has always been very sensitive with regard to the victims of terrorism and the idea of public solidarity has permeated the response of the legal system to this phenomenon, and a scheme of public aid to the victims has been in operation for many years now.3 Last year this mechanism was refined by
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Press Note 16 January 2007 (www.aena.es). Press Note 11 January 2007 (www.aena.es). See the details in M. Martín-Casals/J. Ribot Igualada, Liability for Acts of Terrorism under Spanish Law, in: B.A. Koch (ed.), Terrorism, Tort Law and Insurance (2004) 93.
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broadening the definition of the persons entitled to public compensation. In particular, the reform includes the members of a de facto partnership. In cases where a partner dies as a result of a terrorist attack, the victim will be entitled to a widow’s pension in the same way as a member of a married couple who would have the same entitlement in the case where he or she lost his or her partner.4 Two conditions have to be met, namely (a) that the beneficiary of the pension has cohabited with the person who died due to a terrorist attack. The relationship between them has to be analogous to a marriage from the affective point of view, and (b) that the relationship has to have had a permanent character for at least the two years preceding the victim’s death.
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Currently, direct damage to persons or property as a consequence of terrorist attack is in practice always covered by a different mechanism, namely, the “Consortium for Insurance Compensation” (Consorcio de Compensación de Seguros). The Consortium is a public corporation in the Ministry of the Economy, designed to cover the risks defined in its Statutes. The risk of damage caused by terrorism is one of the so-called extraordinary risks covered in exchange for a compulsory charge collected on behalf of the Consortium by private insurers in all accident and damage to property policies.5 Until 2005, the Consortium awarded more than 25,402 claims for a total amount of about € 358,083,760 because of damage resulting from terrorism, i.e. an average € 14,097 per claim.6 Insurance companies have the possibility of including cover for terrorism in their insurance policies, but they never do so in practice.7
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Given that in the present case it is beyond doubt that damage was violently caused as a result of terrorism and that the airport attack took place in Spain, the only remaining basic condition for the Consortium’s coverage to be established is that damage relates to an insured person or property. This requirement is also met, since AENA extended, in February 2006, the cover of its insurance contract to damage to the facilities of the new terminal. The Consortium has facilitated matters for the victims by making it clear that it will cover damage caused by the terrorists as well as by informing the public about the procedure to be followed to obtain compensation.8
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The legal status of the Consortium has now slightly changed because of a statutory reform passed in 2006 with regard to risks covered.9 The previous 4
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Real Decreto-ley 6/2006, de 23 junio, sobre pensiones excepcionales derivadas de atentados terroristas (BOE, Boletin Oficial del Estado, Official Gazette no. 150, 24.6.2006, 23978; correction of errors BOE no. 17, 1.8.2006, 2382). For further details see Martín-Casals/Ribot (fn. 3) 90 ff. Another example can be found in STS (Criminal Chamber) 25.10.2006 (Repertorio de Jurisprudencia Aranzadi-Westlaw, RJ 2006/6708) in a case of damage caused by torrential rain. Consorcio de Compensación de Seguros, Estadística riesgos extraordinarios. Serie 1971–2005 (2006) 82. See also <www.consorseguros.es>. See Questionnaire on insurance and terrorism, XII World Congress on Insurance Law, Buenos Aires (2006), Revista Española de Seguros (RES) 2006, 126 ff. See http://www.consorseguros.es/textos/terrorismo/Atentado_30_D_Aeropuerto.pdf. Ley 12/2006, de 16 de mayo, por la que se modifica el texto refundido del Estatuto Legal del Consorcio de Compensación de Seguros (BOE no. 117, 17.5.2006, 18826–18841).
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wording of the rule had tried to make clear under what conditions it is to be considered that a risk is located in Spain, in order to trigger the cover of the Consortium, by listing several risks. The reform has added a new subsection to the list in order to include the case where there is a personal insurance, provided that the usual place of residence of the insured person is in Spain. Moreover, a different subsection has also been redrafted in order to make reference to the case of legal persons. Now, the risk will also be considered to be located in Spain provided that the registered office of the policy holder, legal person or its branch – to which the contract refers – is located in Spain (art. 1.Uno). In line with this change, the reform aims at covering damage resulting from terrorist attacks in a foreign country in a better way. Before, the policy holder was required to have his usual place of residence in Spain in order to trigger the cover of the Consortium for extraordinary events which take place abroad. The new Act makes reference to the insured person instead of the policy holder, since it is the former who is affected by the risk (art. 1.Uno). Apart from this, the reform takes into account the development of the insurance market over the last few years in connection with terrorism. Here it is necessary to recall the Madrid terrorist attacks of 11 March 2004, which killed 191 and caused injuries to more than 1,500 as a result of several train bombs. The reform highlights the limitations of the private sector in offering adequate cover to damage resulting from terrorism – so-called megaterrorism is mentioned – as well as from natural catastrophes. The legislature has thought that these are not merely temporary but permanent factors, as the facts actually seem to confirm. Accordingly, the Act broadens the cover of the extraordinary risks by the Consortium with regard to death and disability in connection with the branch of life insurance (art. 1.Dos). To this end, the reform provides for a compulsory surcharge to be applied in the future to life insurance contracts, which will allow the Consortium to cover these risks as well. The Spanish Government has developed the details and deadlines of the application of the surcharge through a regulation.10
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2. Tort Liability of Juvenile Delinquents The statutory regime on the criminal liability of minors passed in 200011 has also been changed. According to the preamble of the reform Act,12 the overall evaluation of the previous regime is positive. This is confirmed by statistics showing that the number of crimes committed by minors decreased by 5.2% in 10
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Real Decreto 1265/2006, de 8 de noviembre, por el que se modifica el Reglamento del seguro de riesgos extraordinarios, aprobado por el Real Decreto 300/2004, de 20 de febrero (BOE no. 279, 22.11.2006, 40879–40882). Ley Orgánica 5/2000, de 12 enero, de responsabilidad penal de los menores (BOE no. 11, 13.1.2000, 1422 ff). On it see now J. Dávila González, La responsabilidad civil en la Ley Orgánica 5/2000, de responsabilidad penal de los menores, in: E. Llamas Pombo (ed.), Estudios de Derecho de obligaciones. Homenaje al profesor Mariano Alonso Pérez (2006) I, 385–418. Ley Orgánica 8/2006, de 4 diciembre, por la que se modifica la Ley Orgánica 5/2000, de 12-12000, reguladora de la responsabilidad penal de los menores (BOE no. 290, 5.12.2006, 42700 ff.). On previous law, M. Díaz Martínez, El régimen especial de la responsabilidad civil en el proceso penal de menores, Diario La Ley 2006, 1916–1924.
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2005 in comparison with the previous year.13 In spite of this, some shortcomings or dysfunctions had to be remedied. Among the measures now introduced, it is provided that the claims based on private law will be dealt with in the same legal procedure where criminal issues are decided.
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It has to be borne in mind that in Spanish law there is a double-track system, so liability in tort for damage caused by a crime is decided within the criminal procedure unless the parties renounce this or make a reservation of actions with the aim of bringing a separate claim before the private law courts. Moreover, a sole crime may give rise to two separate actions in tort: one, brought by the public prosecutor (Ministerio Fiscal) before the criminal court, and the other brought by the affected parties before a court in the civil jurisdiction. The resulting situation could be problematic since the public prosecutor is automatically given such power.14 In general, the double-track system may create other problems, such as the need to ascertain whether liability in tort may be established in the absence of criminal liability, to which the Supreme Court has decided in the affirmative (among the later decisions see Supreme Court [Tribunal Supremo] Decision STS 2nd Chamber 26.9.2005 [RJ 2005/7336]).15 At the same time, a person who was declared liable on a subsidiary basis in the criminal procedure could later bring a claim against the primary liable party before the civil court, which could give rise to problems of apportionment of liability between spouses (as in the case of STS 30.5.2006 [RJ 2006/3320]).16 The fact that liability of an entrepreneur may be imposed on a direct basis or on a subsidiary basis, depending on whether the rules on tort liability laid down by the Criminal Code or those of the Civil Code are applied to the case, may give rise to further complications (as the STS 4th Chamber 26.1.2006 [RJ 2006/1554]17 demonstrates). 13
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Press Note of the Ministry of Internal Affairs 17.1.2006 (www.mir.es). See also Ministerio del Interior, Anuario Estadístico 2005 (2006) 301. See the criticism by J.M. Asencio Mellado, La necesaria reforma del régimen de exigencia de responsabilidad civil derivada del delito o falta, Revista Práctica de Tribunales 2006, no. 33, 3–5. Also, on tort liability derived from crimes committed through Internet see M. Gómez Tomillo, Responsabilidad penal y civil por delitos cometidos a través de Internet (2nd ed. 2006) 121 ff. See also J.M. Busto Lago, La responsabilidad civil de los responsables de ficheros de datos personales y de los encargados de su tratamiento, Aranzadi Civil (Ar. Civ.) 2006, 2177–2215; M. Cardenal, La indemnización de los daños infligidos con ocasión de la lesión de derechos fundamentales, Aranzadi Social 2006, no. 11, 9–20, and Á. Acedo Penco, La responsabilidad civil extracontractual por atentados contra la dignidad divulgada mediante los servicios de la sociedad de la información en los ordenamientos comunitario y español, Anuario de la Facultad de Derecho de la Universidad de Extremadura (AFDUE) 2006, 97–117. Commented on by A. Fernández Crende, Imputación objetiva en un caso de responsabilidad civil ex delicto: criterio de la provocación, InDret 2006 (www.indret.com) no. 313. The wife of the culprit escaped tort liability because the couple had already separated at the moment the subsidiary liable party had paid the compensation sum to the victim. See A. Salas Carceller, La acción civil de repetición del responsable civil subsidiario frente al responsable del delito o falta, Ar. Civ. 2006, no. 17 and, in more depth, J. Rams Albesa, La sociedad de gananciales y la responsabilidad extracontractual, Revista Crítica de Derecho Inmobiliario (RCDI) 2006, no. 693, 145–182. Commented on by M. Luque Parra/R. Robles Planas/D. Felip Saborit/C. Gómez Ligüerre, Acción de regreso de un trabajador contra su empresa, responsable penal subsidiaria: algo más que un problema de jurisdicción, InDret 2006 (www.indret.com) no. 356.
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In cases of crimes committed by minors, a separate jurisdiction comes into play, namely the Minors’ Courts. As soon as the judge receives the initiation report by the public prosecutor, he will open a small procedure within the criminal procedure to deal with liability in tort (new art. 64.1). The interested parties – including insurance companies – will be notified by the judicial secretary and will be given a period of time to appear in court. Liability in tort and criminal liability will be decided simultaneously (new art. 64.2) and the judge will adopt any necessary measures to protect the privacy of the minor in court (new art. 64.5).
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This statutory regime is complemented by two recent regional statutes of the Balearic Islands. According to one of them, if after having decided on an administrative procedure the Public Administration realises that the parents, tutors or guardians of a minor may be liable in tort, it will have the duty to inform the public prosecutor (art. 140 of Act on the Rights of Children).18 Moreover, the Public Administrations will adopt the measures required in order to oblige violators of the statutory regime to compensate for damage caused (art. 90.b) of the Integral Act on the Youth).19
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3. Infringement of Intellectual Property In 2006 the Spanish legislature adapted Spanish law to the 2004 EC Directive on intellectual property.20 This was carried out by a single statute which modifies several existing statutes on intellectual property rights and procedural law.21 The first rule to receive our attention deals with compensation for damage caused as a result of the infringement of a copyright (art. 2.Cuatro). It gives new wording to the corresponding section of the Intellectual Property Act 199622 (LPI, art. 140). The new provision preserves a norm according to which the award for damages may include the research costs incurred to obtain reasonable evidence of the commission of the infringement, as appropriate (art. 140.1 in fine LPI). There is no reference to such specific costs in the Directive (but see its art. 14). With regard to damage assessment, the Spanish reform follows the Directive (art. 13.1) more closely.
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The new statutory regime on compensation for the infringement of copyright is almost repeated in full with regard to damage for infringement of a patent23
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Ley 17/2006 del Parlamento de las Illes Balears, de 13 noviembre, integral de la atención y de los derechos de la infancia y la adolescencia de las Illes Balears (BO Illes Balears no. 163, 18.11.2006, 52 ff.). Ley 10/2006 del Parlamento de las Illes Balears, de 26 julio, integral de juventud (BO Illes Balears no. 109, 3.8.2006, 59 ff.; corr. of errors BO no. 112, 10.8.2006, 42). Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ L 157, 30.4.2004, 45–86). Ley 19/2006, de 5 de junio, por la que se amplían los medios de tutela de los derechos de propiedad intelectual e industrial y se establecen normas procesales para facilitar la aplicación de diversos reglamentos comunitarios (BOE no. 134, 6.6.2006, 21230–21238). Real Decreto Legislativo 1/1996, de 12 de abril, por el que se aprueba el Texto Refundido de la Ley de Propiedad Intelectual, regularizando, aclarando y armonizando las disposiciones legales vigentes sobre la materia (BOE no. 97, de 22.4.1996). Ley 11/1986, de 20 de marzo, de patentes de invención y modelos de utilidad (BOE no. 73, 26.3.1986, 11188 ff.).
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and trademark, following the Directive’s provisions. In connection with the Trademark Act,24 it can be noted here that it does not foresee a possibility for the right holder to merely claim the cost of an advertising campaign carried out to differentiate his product from another. This has been allowed by a decision of the Spanish Supreme Court in the Neutrogena case (STS 21.6.2006 [RJ 2006\6081]). The claimant had sued a competitor for having commercialised Neutrocol, a product which imitated the packaging and even the advertising campaigns of the hand cream produced by the claimant.25
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Finally, the new rule provides that the holder of a registered trademark may claim compensation of harm caused by the infringer to the prestige of the trademark, in particular due to its inadequate use in the market (art. 43.1). This could be the case if the infringer had sold products of a lower quality in comparison to the ones sold by the right holder.26 With regard to industrial design, damage to prestige of the design is also compensable (pursuant to art. 55.1 of the Industrial Design Act in the new wording).27 4. Damage to Natural Resources
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Last year the Spanish Parliament and several regional parliamentary assemblies passed a number of statutory reforms related to environmental protection. In general, the already existing legal regimes on this issue have in common that they lay down a rule on restoration of damage which is normally included among the provisions devoted to infractions of public law and the liability attached thereto. The responsibility to proceed against the wrongdoers is normally assigned to the Public Administration, which will oblige the wrongdoer to restore to the situation prior to the infraction as well as to make him pay a sum of money in compensation if restoration in kind is not possible.28 Moreover, the Public Administration is usually entitled on an explicit basis to assess damage on its own.29
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This regime now can be found once again in two Acts from Aragon, namely, the Act on Environmental Protection (art. 97)30 and, with slight differences, 24 25
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See Ley 17/2001, de 7 diciembre, de marcas (BOE no. 294, 8.12.2001, 45579 ff.). Actually, the claim was based on the law of unfair competition. The recovery of the cost referred to compensates the claimant for the decrease in the sales suffered. See B. Fernández González, Responsabilidad civil por el uso indebido de las marcas, Actualidad Civil (Act. Civ.) 2006, 2164–2174, at 2173. Ley 20/2003, de 7 de julio, de protección jurídica del diseño industrial (BOE no. 162, 8.7.2003, 26348 ff.). This mechanism can now also be found with regard to consumer protection. See art. 1.Doce of the Ley 44/2006, de 29 de diciembre, de mejora de la protección de los consumidores y usuarios (BOE no. 312, 30.12.2006, 46601–46611). See art. 10.2 of the Real Decreto Legislativo 1302/1986, de 28 de junio, sobre evaluación de impacto ambiental (BOE no. 155, 30.6.1986, 23733 ff.). Ley 7/2006 de las Cortes de Aragón, de 22 junio, de protección ambiental de Aragón (BO Aragón no. 81, 17.07.2006, 9819 ff.; corr. of errors BO no. 106, 13.09. 2006, 11905 ff.). Also, with regard to damage to roads, see art. 60 and 61 of the Ley 8/2006 de la Junta General del Principado de Asturias, de 13 noviembre, de carreteras (BO del Principado de Asturias no. 271, 23.11.2006, 22539 ff.; corr. of errors BO no. 287, 14.12.2006, 23674).
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the Aragon Mountains Act (art. 128.3),31 but also in the Valencia Pollution Prevention Act (art. 89.2.a))32 and the Basque Country Water Act.33 The latter also lays down a rule on limitation of actions in connection with the duty to restore damage caused to the public domain. Since the limitation period is 15 years (pursuant to art. 60.5), it not only departs from the shorter period laid down in the Civil Code with regard to damage in general (1 year according to art. 1968 2nd), or the new Book V – on the law of things – of the Catalan Civil Code with reference to nuisance (3 years according to its art. 546-14.7)34 but also from other Acts which establish no limitation period at all in connection with damage to the public domain (Aragon Mountains Act, art. 127.2) or damage to Public Administrations in general (Valencia Pollution Prevention Act, art. 89.5). This rule may be objectionable taking into account the fact that the acquisition of public domain through prescription (usucapio) is banned by the Constitution (art. 132). Therefore it is critical for the Public Administration not to remain passive when confronted with infringements of environmental law. Also, several new statutes provide that the damages award assessed by the Public Administration will be paid to the owner of the damaged resources by the liable person (art. 127.4 Aragon Mountains Act and art. 94.4 Cantabria Act on the Conservation of Nature).35 Although this may seem somewhat surprising, it is nothing new in Spain. Several previous Acts already lay down a similar regime, the most important of them being the Act on the Legal Regime of the Public Administration and the Common Administrative Procedure.36 However – inasmuch as damage to private interests may be at stake – one might wonder whether access to private law courts would not be a preferable solution.37 This is the approach followed by two Valencia Acts (art. 22 Woodland Act38 and art. 89.1 Pollution Prevention Act).
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As can be observed, none of these Acts defines damage in detail. At most, some of them state that damage has to affect the public domain for liability to be established. In general, no liability for damage to the environment as such is foreseen. Therefore, pure ecological damage remains uncompensated for. However, two of these Acts seem to have taken a step in a new direction.
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Ley 15/2006 de las Cortes de Aragón, de 28 diciembre, de montes (BO Aragón no. 149, 30.12.2006, 17074 ff.). Ley 2/2006 de las Cortes Valencianas, de 5 mayo, de prevención de la contaminación y calidad ambiental (DO Generalitat Valenciana no. 5256, 11.5.2006, 16611 ff.). Ley 1/2006 del Parlamento del País Vasco, de 23 junio, de aguas (BO País Vasco no. 137, 19.07.2006, 15300 ff.). Ley 5/2006 del Parlamento de Cataluña, de 10 mayo, del Libro quinto del Código civil de Cataluña, relativo a los derechos reales (DO Generalitat de Catalunya no. 4640, 24.05.2006, 23167 ff.; corr. of errors DO no. 4655, 15.06.2006, 26128). Ley 4/2006 del Parlamento de Cantabria, de 19 mayo, de conservación de la naturaleza de Cantabria (BO Cantabria no. 105, 01.06.2006, 6843 ff.). Ley 30/1992, de 26 de noviembre, de régimen jurídico de las administraciones públicas y del procedimiento administrativo común (BOE no. 285, 27.11.1992). Instead of many see E. Cordero Lobato, Derecho de daños y medio ambiente, in: L. Ortega Álvarez, Lecciones de Derecho del medio ambiente (2nd. ed. 2000) 450. Ley 4/2006, de 19 mayo de las Cortes Valencianas, sobre el patrimonio arbóreo monumental de la Comunitat Valenciana (DO Generalitat Valenciana no. 5265, 24.05.2006, 18596 ff.).
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The new Act of Cantabria on the prevention of pollution consisting of light39 provides that if the wrongdoer causes harm to the landscape, the environment or the biodiversity in general, he will be obliged to repair it (art. 22). This is consistent with the Cantabria Act on the Conservation of Nature, according to which the wrongdoer will be compelled to restore the natural environment, i.e. the biological and physical reality (art. 94.1). This includes damage to the natural environment and wild species (art. 94.4). Furthermore, the Public Administration is obliged to adopt any measures allowing for the restoration of damage (art. 94.1 in fine). Interestingly, the Act deals with compensation of damage when restoration in kind is not technically feasible. Then, the Public Administration may oblige the wrongdoer to adopt substitute measures to restore the affected area (art. 94.2). Similarly, in Valencia the liable party will have to carry out compensation measures of equivalent environmental effects (art. 89.3 Pollution Prevention Act). This is one way of avoiding the cumbersome assessment of resources for which a market may not exist, as is often the case with pure ecological harm. An alternative approach would involve the legislature laying down a list with the value of each species at risk, as now followed by the new Fishing Act of La Rioja. According to it, the appraisal of the catch will be established by a regulation (art. 83).40 5. Hunting and Fishing
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The Spanish statutory panorama on tort law is further complicated by two other regions having passed new Acts on hunting or fishing which refer to liability for damage derived from these activities. According to the Balearic Islands Act on Hunting and River Fishing41 (art. 50.5) and the Cantabria Hunting Act42 (art. 64.1), the hunter is strictly liable for damage caused on the occasion of hunting, except for damage caused by the negligent behaviour of the victim only or due to force majeur. Although this is a replication of the rule already laid down by the Spanish Hunting Act43 (art. 33.5), the Balearic Act requires that damage is directly caused by hunting. Neither of the regional Acts has a liability rule on alternative causation as can be found in the Spanish Act (art. 33.5 2nd part). However, given that case law favours the application of liability on a solidary basis in these and similar instances (e.g. STS 8.3.2006 [RJ 2006/1076]: damage caused by an indeterminate member of a group of children and liability on a solidary basis of the parents of all of them)44 it seems 39
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Ley 6/2006 del Parlamento de Cantabria, de 9 junio, de prevención de la contaminación lumínica (BO Cantabria no. 116, 16.06.2006, 7595 ff.). Ley 2/2006 del Parlamento de La Rioja, de 28 febrero, de pesca (BO La Rioja no. 33, 09.03.2006, 1437 ff.). Thus, the Government of La Rioja will be entitled by this Act to claim compensation for damage to the catch (art. 88.2). Ley 6/2006 del Parlamento de las Illes Balears, de 12 abril, de caza y pesca fluvial (BO Illes Balears no. 61, 27.04.2006, 42 ff.). Ley 12/2006 del Parlamento de Cantabria, de 17 julio, de caza de Cantabria (BO Cantabria 02.08.2006, no. 148, 9431). Ley 1/1970, de 4 de abril, de caza (BOE no. 82, 06.04.1970). In legal scholarship, M. Martín-Casals/A. Ruda, Comentario a la Sentencia de 26 de noviembre de 2003, Cuadernos Civitas de Jurisprudencia Civil (CCJC) 2004, no. 65, 843–859. However see STS 17.7.2006 (RJ 2006/4961), which rejects solidarity because it had not been proved that the defendant architects had contributed to causing damage.
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that the result will be the same. Apart from this, and following the path of the Spanish Hunting Act (art. 33.4), both regional Acts lay down compulsory insurance for the hunter. However, whereas the Cantabria Act refers to damage (art. 64.1), the Balearic Act refers to damage to persons (art. 51.1). Also both regional Acts extend their scope of application to damage caused by wild fauna.45 However, the new regulation is once again not entirely coincident with the Spanish regime. As to the liability of the person who runs a game reserve, the Cantabria Act provides that he will be liable for damage caused by wild animals coming out of his reserve (art. 63.1). By contrast, the Balearic Act merely refers to material damage caused to crops or trees. Therefore, this second Act departs from the approach prevailing in hunting legislation, which holds that person liable for damage to, say, drivers of a motor vehicle who collide with an animal coming out from a game reserve. The comparison of both rules – too intricate to be made here – may show other annoying differences of detail which contribute to making the overall picture of Spanish tort law on these issues rather muddling.46 A last example should suffice to illustrate this. Only the Cantabria Act refers to the case where damage is caused by game where it is not possible to ascertain where the animal came from. The persons who run the game reserves in the areas out of which the animal could have escaped as well as their owners will be liable on a solidary basis (art. 63.4). This means an extension of the rule on alternative causation previously referred to, to an instance not taken into account by the Spanish Act.
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6. Other Issues Finally, brief attention is to be paid to some other minor reforms. In 2006 the Spanish Parliament passed a new Act to improve consumer protection. Shortly before, several regions had passed their own Acts on this issue, all containing more or less similar provisions, some of which referred to tort law. In general, they grant consumers the right to compensation for damage suffered (see art. 26 of the Navarra Consumer Protection Act47 and art. 4.c) and 19.1 of the Aragon Consumer Protection Act).48
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Moreover, Parliament has transposed the Directive on insurance mediation49 into Spanish law. With regard to insurance agents linked to several insurance
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On the previous Spanish reform on this issue see J. Ribot/A. Ruda, Spain, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2005 (2006) 528–529 and E. Vicente Domingo, Accidentes de circulación causados por la caza, Act. Civ. 2006, 261–267. Raising doubts as to the constitutionality of some autonomous statutes, see now F. Cuenca Anaya, De nuevo sobre accidentes provocados por las piezas de caza en las carreteras, Diario La Ley 2006, 1763–1765. Ley Foral 7/2006 del Parlamento de Navarra, de 20 junio, de defensa de los consumidores y usuarios (BO Navarra no. 78, 30.06.2006, 7170 ff.). Ley 16/2006 de las Cortes de Aragón, de 28 diciembre, de protección y defensa de los consumidores y usuarios de Aragón (BO Aragón no. 149, 30.12.2006, 17102 ff.). Directive 2002/92/EC of the European Parliament and of the Council of 9 December 2002 on insurance mediation, OJ L 9, 15.1.2003, 3–10.
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companies, the new Act on insurance mediation50 provides for the possibility that liability in tort derived from damage caused by the professional negligence of the agent is assumed by the companies in whose name the agent acted. Otherwise, he is obliged to conclude an insurance contract or provide security equivalent thereto to cover his professional liability, whose amount of cover will be established by a regulation (art. 21.3.h)). If the agent has an exclusive nature – i.e. he is bound by an insurance agency contract to a sole insurance company – this company will be liable for damage caused by the agent (art. 18). As for insurance brokers, compulsory professional liability insurance covering damage caused by their professional negligence is established as a condition for carrying out this activity (art. 27.1.e)).
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Last year the Catalan Parliament passed the Railway Act,51 which lays down a provision on liability for administrative violations giving rise to damage caused by a minor. Then, the parents will be held liable on a solidary basis as regards the administrative fine (art. 61.1). As is well known, in spite of the restrictive stance of the Spanish Civil Code as regards solidary liability – according to art. 1137 it is not to be presumed – case law has turned solidarity into the general rule in cases of damage caused by a plurality of tortfeasors.52 Thus, the cases of damage caused by trains will have to be solved through the general rules of the Civil Code and not through Catalan law. Take for instance STS 27.2.2006 (RJ 2006/694): the victim was killed after having fallen onto the rails as a result of suffering an epileptic attack as the train entered the station. Although the train was not equipped to avoid such accidents, the court found for the defendant railway company because the fault of the machinist had not been proved under art. 1902 CC. Also, STS 26.9.2006 (RJ 2006/7476) rejected the claim against the Madrid underground company because the victim could not prove how the accident occurred while trying to get onto the carriage after the underground train had begun to leave the station.
B. CASES 1. Constitutional Court Decision (Sentencia del Tribunal Constitucional) STC 42/2006, 13 February:53 Non-Pecuniary Loss a) Brief Summary of the Facts
24
The claimant had filed an action in tort against the physician who had assisted her during the birth of her child. Allegedly, he had negligently caused the new born child to suffer partial paralysis in one arm due to complications caused by 50
51
52
53
Ley 26/2006, de 17 julio, de mediación de seguros y reaseguros privados (BOE no. 170, 18.07.2006, 26959 ff.). Llei 4/2006 del Parlament de Catalunya, de 31 de març, ferroviària (DO Generalitat de Catalunya no. 4611, 10.04.2006, 16616 ff.) See M. Martín Casals/J. Solé Feliu, Multiple Tortfeasors under Spanish Law, in: W.V.H. Rogers (ed.), Unification of Tort Law: Multiple Tortfeasors (2004) 190. BOE no. 51 Supplement, 1.3.2006, 28–31.
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having failed to give the mother a caesarean section. The Spanish Supreme Court reversed the decision issued by the lower court, which had awarded the mother the exact amount of money she had requested in compensation for non-pecuniary loss; ESP 15 million (€ 90,151.80). The Supreme Court reduced this sum on an equitable basis and awarded the claimant € 45,000 instead (STS 30.1.2003 [RJ 2003, 931]). The decision stressed that she had not brought a claim for damage caused to her daughter, but for the non-pecuniary loss she herself suffered. The claimant challenged such a decision before the Constitutional Court on the basis of an alleged violation of her right to a due legal process (art. 24.1 of the Constitution). She argued that the Supreme Court had misunderstood the decision of the lower court, which had awarded compensation for damage to the mother only. The court, she added, was not allowed to reduce the damages award on the basis of arguments not formulated by the defendant. Moreover, the claimant argued that the legal reasoning of the Supreme Court’s decision regarding the reduction of the damages award was insufficient. Finally, she further stated that the assessment of damages is an issue of fact and therefore cannot be revised by the Supreme Court on appeal.
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b) Judgment of the Court
The decision of the Supreme Court is correct because it merely checked that the conditions for liability to be established under art. 1902 of the Spanish Civil Code were met in the case at stake. Secondly, the reasoning of the claimant that the Supreme Court misinterpreted the decision of the lower court also cannot be shared. Actually, the claimant herself had acknowledged in the course of the procedure that she was claiming on her behalf only. However, the claimant is right in that the reasoning of the decision challenged before the Constitutional Court is insufficient. Indeed, it does not explain at all the reasons why the damages award should be reduced to half or to any other proportion or amount. Provided that it is beyond doubt that the mother was the only claimant, the decision should have given a different rationale for reducing the compensation sum in the way it did. Thus, the Supreme Court should pronounce a new decision on the case.
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c) Commentary
As is well known, one of the differences between pecuniary damage and nonpecuniary loss lies in the greater difficulty in assessing the amount for the damages award for the second kind of damage. Apart from some cases where the legislature provides criteria for assessing non-pecuniary loss – as in the case of infringement of personality rights – 54 Spanish courts have coped with this is54
See M. Martín-Casals, Notas sobre la indemnización por daño moral en las acciones por difamación de la LO 1/1982, in: Asociación de Profesores de Derecho Civil (ed.), Centenario del Código Civil (1889–1989) (1990) vol. II, 1231–1273 and with J. Solé Feliu, The Protection of Personality Rights Against Invasions by Mass Media in Spain, in: H. Koziol/A. Warzilek (eds.), Persönlichkeitsschutz gegenüber Massenmedien (2005) 329 ff. See also A. Macías Castillo, El precio de la intimidad, in: E. Llamas Pombo (ed.), Estudios de Derecho de obligaciones. Homenaje al profesor Mariano Alonso Pérez (2006) II, 191–211.
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sue by deciding according to “the circumstances of the case and to prudent and reasonable criteria”.55 Certainly, if a court departs from these criteria its decision may be quashed on appeal. However, this hardly ever happens in practice, since no parameter allows the elucidation of whether the compensation sum awarded to the victim is sufficient.56 The interest of the present decision lies thus in the fact that the claimant successfully challenged the award for damages before the Constitutional Court, on the basis that it was decided without a sufficient explanation of the reasoning leading to the amount of damages awarded.
28
It should be borne in mind that, according to the Spanish Constitution, court decisions have to be sufficiently reasoned (art. 120.3) and that every person has the right to a due process of law (art. 24.1). The question under discussion is how these general rules or principles should be reconciled with an assessment of damages which inevitably entails some degree of subjectivity or power of discretion. As a matter of fact, such an assessment is an issue of fact which – as the Constitutional Court reminds us – in principle cannot be revised by the Supreme Court (see also STS 3rd Chamber 11.10.2006 [RJ 2006/7657]) unless exceptional circumstances occur, namely that: (a) the legal basis which provides the ground for assessing the damages award has been incorrectly applied; (b) there has been an evident error in the establishment of the amount, or (c) the case has been decided in a capricious, disproportionate or obviously unjust way.57 This seems to be what probably happened in the present case. According to the decision, it is not sufficient to merely state that the court finds a certain amount of damages award to be “adequate” or “prudent”, but it should rather state in an explicit manner the criteria which led an amount to be set. Even when the decision of the Supreme Court could be seen as a Solomonlike judgment, it seems that there should be some kind of reason in favour of awarding the exact amount established; otherwise, the claimant’s luck would depend on how ambitious he was when he filed his claim.
29
In fact, it is not the first time that the Constitutional Court finds fault with the Civil Chamber of the Supreme Court with regard to the assessment of damages.58 Once again this year, the former has reminded the latter that merely “symbolic” or nominal damages are not allowed under Spanish law (STC 23.11.2006).59 However, one may wonder how is it possible to avoid some air of arbitrariness when, as previously stated, there is no real basis to rely upon. Even though Spanish tort law is governed by the principle that all damage suf55
56
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58
59
For references see M. Martín-Casals/J. Ribot Igualada/J. Solé Feliu, Non-Pecuniary Loss under Spanish Law, in: W.V.H. Rogers (ed.), Damages for Non-Pecuniary Loss (2001) 192 ff. Among others, see J. Pintos Ager, Nota sobre la conveniencia y constitucionalidad del sistema de valoración judicial de daños personales, La Ley 1998, 1772. See M. Gili Saldaña/A. Azagra Malo, Revisión casacional de la cuantía indemnizatoria, InDret 2006 (www.indret.com) no. 312, 3. See J.Ribot/A. Ruda, Spain, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2003 (2004) 389. BOE no. 284 Supplement, 28.11.2006, 16–23. The Tribunal Supremo had awarded € 200 for violation of privacy of the victim.
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fered by the victim should be compensated for (restitutio in integrum),60 this is barely achievable in the absence of an objective standard for assessing damage. In fact, this makes the exact outcome of a case where non-pecuniary loss is discussed hardly predictable, if at all. Such unpredictability is aggravated by the fact that compensation for damage caused by tortious acts can be awarded not only by civil courts but also by administrative, criminal and even labour courts.61 All this seems a strong argument in favour of advocating for a statutory tariffication scheme consisting of a scale for calculating non-pecuniary loss, in particular with regard to damage caused by medical malpractice.62 It is no wonder that insurers are already pushing for legal reforms in this area with the aim of reducing the existing uncertainty. As a matter of fact, a bill draft on this issue is currently under discussion at the Spanish Ministry of Health. We may then assume that the Supreme Court had tried to objectivise its reasoning in some way by making reference to the fact that the mother had brought a claim on her behalf only. Though, it could be questioned why the reduction should be to half. Is there certainly some kind of implicit reason suggesting that the amount awarded was the “right” amount? Probably, the non-pecuniary loss suffered by the daughter herself was more serious than the same kind of loss suffered by her mother. Therefore, the reduction could have been even greater.63 However the issue at stake is not what amount of damages award the Constitutional Court finds to be correct, but that whatever the assessment of non-pecuniary loss may be, it has to be sufficiently grounded upon reasoning. Perhaps, one possibility would have been to base the establishment of the damages award upon amounts previously awarded in similar cases, in addition to taking the circumstances of the case into account – including the gravity, duration and consequences of the grievance (see art. 10:301 PETL).
30
2. STS 18.5.2006; RJ 2006, 4724: Wrongful Life a) Brief Summary of the Facts
The claimants were the parents of a child. After having had a miscarriage, the woman became pregnant again. Within the framework of a health insurance policy provided by the company “FIATC”, the woman underwent periodical medical examinations during her pregnancy. Since she had a collateral relative with Down’s syndrome, she had had an amniocentesis on one of the first visits to the gynaecologist provided for by the company. However, such a test was 60
61
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63
On this issue in connection with collateral benefits see now E. Vicente Domingo, La reparación integral y la compensación de lucros y daños, in: E. Llamas Pombo (ed.), Estudios de Derecho de obligaciones. Homenaje al profesor Mariano Alonso Pérez (2006) II, 931–939. As M. Martín-Casals, An Outline of the Spanish Legal Tariffication Scheme for Personal Injury resulting from Traffic Accidents, in: H. Koziol/J. Spier (eds.), Liber amicorum Pierre Widmer (2003) 235 stresses. Later see Á. Luna Yerga/S. Ramos González/I. Marín García, Guía de Baremos, InDret 2006 (www.indret.com) no. 370, 17. See M.P. Sánchez González, El daño moral. Una aproximación a su configuración jurídica, Revista de Derecho Privado 2006, 27–53 and M. Gili Saldaña/A. Azagra Malo, Ruleta indemnizatoria y tutela judicial efectiva, InDret 2006 (www.indret.com) no. 373, 8. See S. Cavanillas Múgica, La motivación judicial de la indemnización por daño moral, Derecho Privado y Constitución 2006, no. 20, 171.
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not actually covered by the policy, so they went to a different company, called “Medicentros S.L.” The test gave a negative result because it had not been possible to obtain an adequate number of cells required to develop a cytogenesis study. Although this meant that a second analysis was required, and in spite of the fact that the claimant had shown her interest in undergoing the test, nobody contacted her on time. As a result, the time period established by Spanish law for being able to abort expired. After the son expected was eventually born with Down’s syndrome, the parents filed a claim in tort both on their behalf and on behalf of the son against the gynaecologist, Medicentros and FIATC. The lower courts had found for the claimants. b) Judgment of the Court
32
The Supreme Court begins by rejecting an argument alleged by Medicentros. In the opinion of the court, it is not necessary to bring the laboratories which actually carried out the amniocentesis to court, because the claimants had agreed upon performing the analysis with Medicentros only. For a similar reason, FIATC cannot be held liable for something which fell outside the scope of the insurance contract. FIATC had not assumed any kind of warranty or obligation with regard to such medical services provided by other parties.
33
With regard to informed consent, the court states that the burden of proof concerning whether the patient has been duly informed lies upon the medical professionals.64 Otherwise, the patient would have to bring evidence that she was not informed, i.e. the proof of a negative fact, which would be contrary to the constitutional right to a due process of law (art. 24 of the Constitution). The decision reminds us of previous case law in which the burden of proof concerning information lies with the physician or the hospital, especially in the cases where medical treatment is not strictly necessary. Moreover, it adds, case law has been softening the criteria on the distribution of the burden of proof according to the criterion of “for whom is it easier to prove” (facilidad probatoria), according to the procedural rules (art. 217 Civil Procedure Act).65 The fact – the decision goes on – is that the patient was not informed and it has not been proven that she refused to undergo a new analysis. Information should have been complete, continued and veracious through any reliable means. It is the obligation attributed to the physician, who takes care of the pregnancy and requests this kind of analysis, to control the detailed information given to the pregnant woman, the date and the features of the information with regard to the possibilities and the periods of time in which it could be repeated if necessary, as well as the clinical risks involved both in the event of the analysis being carried out and in the case of it not being performed. Hence, the clinical documentation or file on the patient should register the delivery of the information, 64
65
See now L. Blanco Pérez-Rubio, El deber de información en la medicina voluntaria o satisfactiva, in: E. Llamas Pombo (ed.), Estudios de Derecho de obligaciones. Homenaje al profesor Mariano Alonso Pérez (2006) I, 175–198. In the same volume see also R. de Ángel Yágüez, El “resultado” en la obligación del médico, 419–468. Ley 1/2000, de 7 de enero, de Enjuiciamiento Civil (BOE no. 7, 8.1.2000, 575–728; corr. of errors BOE no. 90, 14.4.2000, 15278 and no. 180, 28.7.2001, 27746).
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the subsequent evolution as well as the refusal to undergo a second analysis, if applicable, notwithstanding the knowledge the parents already had on the analysis. Finally, the decision deals with the appeal filed by the gynaecologist. He argued that the Court of Appeal had incorrectly obliged him to pay a life annuity to the son of the claimants in spite of the fact that the judge of First Instance had not established the amount of the damages award. However, the Supreme Court repeats well-established case law saying that if the judicial organ finds sufficient elements to determine such an amount, it is not incongruous to do so. Quite the contrary: the establishment of a life annuity in favour of the child guarantees that the principle of full compensation of damage – which is the basic aim of tort liability – is observed.
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c) Commentary
This is the first decision of the Spanish Supreme Court awarding compensation for wrongful life. This mere circumstance makes it interesting enough, but there are others too. First, it is noteworthy that it exonerates the health insurer from liability for damage negligently caused by a physician to a third person, despite the fact that the physician clearly belonged to the team of professionals of the insurer. This aspect will be dealt with below since it is the object of a different decision. Secondly, the present decision is along the lines of the majority of previous ones from the same court which award the parents of a handicapped child compensation for wrongful birth. The decision correctly awards (ESP 30 million, i.e. around € 180,000) compensation for damage suffered not only by the mother – whose interest is clearly infringed – but also by the father, who suffers damage caused par ricochet.66 Moreover, it is noteworthy that the decision correctly establishes the duty to compensate not in the form of a lump sum, but through a life annuity (ESP 150,000 per month, around € 901). This allows future extra expenses which derive from the anomaly suffered by the child to be taken into account. However, whether it is also right to define the person or persons entitled to receive compensation by describing them as the “holders of the custody or the guardians of the child” seems more controversial. Instead, it would probably have been more appropriate to refer to the persons who are obliged to pay for the maintenance and education of the child.67
35
Apart from this, it is remarkable that the decision obliges the defendants to pay compensation to the sister of the child with Down’s syndrome too (ESP 5 million, around € 30,050). However, it seems unclear which of the sister’s interests has been infringed here. Certainly she could be seen as a possible victim par
36
66
67
Among others see R. Bercovitz Rodríguez-Cano, Comentario a la sentencia de 4 de febrero de 1999, CCJC 1999, no. 50, 858, and M. Martín-Casals/J. Solé Feliu, Comentario a la sentencia de 7 de junio de 2002, CCJC 2002, no. 60, 1118. On damage par ricochet see now M.M. Naveira Zarra, El resarcimiento del daño en la responsabilidad civil extracontractual (2006) 177 ff. See M. Martín-Casals/J. Solé Feliu, Comentario a la sentencia de 18 de mayo de 2006, CCJC 2007, no. 73, 517.
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richochet, whether or not an interest of hers had really been infringed in this case. Something similar can be said with regard to the wrongful life claim. Although one scholarly opinion seems to favour the criterion now adopted by the Supreme Court,68 one could think of at least the following arguments against compensating the child in these cases: (a) first, no interest of the child is affected in the same way her mother’s is. Indeed, the child has not been deprived of the possibility of deciding about the abortion being performed or not. In the same vein, it could perhaps be argued that damage alleged by the child cannot be objectively attributable to the defendant. The purpose of the legal rule which decriminalises abortion is not to avoid damage caused to the child by the mere fact of him being born with Down’s syndrome.69 (b) And second, it seems doubtful whether the child has the right not to live even in the case where he suffers severe anomalies. As in other borderline cases, it should be made more clear why tort law should intervene to shift damage from one person – the victim – to another. Probably, there are mechanisms other than tort law – such as social aid – more suitable to providing handicapped people with the assistance they need. 3. STS 31.5.2006; RJ 2006, 3494: Assumption of Risk a) Brief Summary of the Facts
37
The claimant was a German citizen who had suffered damage while participating in the cyclist competition “Vuelta Ciclista a España” in 1989. The event was organised by a company called “Unipublic, S.A.”, which had obtained all the public authorisations required. One of the stages of the competition’s itinerary included a stretch where a tunnel – about 680m long – had to be passed through from north to south. It was described in the competition route book as “dangerous” and signposted with a yellow flag. Moreover, the organisers had put some lights inside it. However, it was so poorly lit that when one of the race participants fell to the ground in the tunnel he was not able to find his bike in the darkness. Because of this, one of the 80 participants of the group who came afterwards also fell and suffered several injuries as a result, which forced him to retire in spite of being one of the favourites. The second cyclist filed a claim against the organising company and its insurer. b) Judgment of the Court
38
The organising company had negligently failed to illuminate the tunnel adequately. It is no obstacle for its liability to be established that others could have contributed to causing damage to the victim. It is well-established case law that if there has been a damaging event due to the action or omission of several people, provided that only one causal concurrence in the damaging result is generated, every contributor must be held liable on a solidary basis, except in the case where it is possible to attribute to each of them the part of 68
69
See M. Ureña Martínez, Comentario a la sentencia de 6 de junio de 1997, CCJC 1997, no. 45, 1114. See A. Macía, La responsabilidad médica por los diagnósticos preconceptivos y prenatales (2005) 539. See also Bercovitz, CCJC 1999, no. 50, 859.
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damage they caused. Therefore, the defendant is fully liable before the victim (pursuant to art. 1144 CC). Moreover, professional cycling is not a dangerous sport, albeit it entails certain risk, just as any kind of sport activity does. The organising team took proper care of the competition so professional cyclists could trust that the race will be developed under the most favourable conditions. The organiser must adopt the measures required to avoid the typical risks of this sport, which are different from those arising from the mere competition. Only the latter are accepted on a voluntary basis by the sportsmen as a part of their activity, provided that they know about such a risk. Thus, a cyclist can be deemed to have assumed the risk created by some dangerous situations, such as going headlong into a downhill slope or kicking in a sprint. However, risks created by the organisation itself are different; the organiser is not allowed to transfer to the participants something which escapes their control because they ignore it at the beginning of the stage. Moreover, to have complied with existing regulations is not enough: the defendant should have done everything that prudence would recommend with the aim of preventing probable harm from occurring. Finally, the fact that the tunnel had been described as dangerous is irrelevant, for the cyclists were confident that every measure had already been adopted to make the itinerary safe. Therefore, the claimant was awarded ESP 80 million (approx. € 480,000).
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c) Commentary
Over recent years, accidents in the course of a sports activity have been the object of many court decisions. The Supreme Court has kept true to the principle of liability based on fault (art. 1902 CC) and has not resorted to one of the most important devices applied elsewhere to make liability closer to strict liability, namely, the shift of the burden of proof of fault (in particular see STS 22.10.1992 [RJ 1992/8399]). If, say, a golf player dies as a result of the impact of a ball hit by another, it is required for the liability of the latter to be established that the claimant proves fault of the defendant. The latter will escape liability if he was not able to see the other player because of the trees in between (STS 9.3.2006 [RJ 2006/1882]).70 However, the decision under comment has increased the level of care that the defendant – organiser of the sport activity – should have taken by requiring it to take any measures needed to avoid damage according to “prudence”. In fact, this behaviour seems close to a dolus eventualis, since the defendant knew that the tunnel was dangerous and in spite of this did not illuminate it enough. Certainly, the court concedes that a kind of assumption of risk may play a role within the context of sports activities, but not with regard to risks created by the negligent behaviour of the organiser.71 As a matter of fact, it is not adequate here to talk of an assumption 70
71
The ball had been suddenly diverted from its normal course by the wind and – the decision adds – this risk had indeed been assumed by the other player. See M.C. García Garnica, Comentario a la STS de 9 de marzo de 2006, RES 2006, 367–385, 379. It would probably have been different in the case of negligent behaviour of another participant. With regard to baseball, see J. Piñeiro Salguero, Avila v. Citrus Community College District: ¿Hasta dónde llega la asunción del riesgo en el deporte? InDret 2006 (www.indret.com) no. 354.
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of risk because, properly speaking, the negligent behaviour of the organiser does not belong to the risks typical to the activity at stake.72 4. STS 10.5.2006; RJ 2006, 2399: Medical Malpractice a) Brief Summary of the Facts
41
In May 1989, the victim’s son was diagnosed with a tumour in his left leg. After having been advised to extirpate it, he underwent a surgical operation in a private hospital in Girona. Although he began to recover well, some complications arose in December of the same year which forced him to undergo a second operation. As a result, the son was left with several permanent disabilities. His mother filed a claim against the physician, the hospital and the Catalan Public Health System. Both the judge of First Instance and the Court of Appeal found for the defendants. b) Judgment of the Court
42
Although it has not been proved that the physician behaved in a negligent way, the fact is that the child’s parents were not duly informed of the risks of the first operation and that this operation caused damage to the child. The mere fact that such operation was the only way to deal with the illness suffered by the patient does not imply that the defendants should escape liability. Nevertheless, they are not accountable for all the consequences suffered by the victim. Instead, they should compensate him for damage derived from ignoring the risks of the surgery and the loss of the opportunity to behave in accordance with such risks. Thus, the defendants should pay ESP 5 million (about € 30,000) to the victim. c) Commentary
43
The number of claims in tort for medical malpractice seems to have increased over the last few years.73 However, it is one of the few fields where case law keeps applying the general clause of liability based on fault (art. 1902 CC) without shifting the burden of proof to the defendant.74 In the present case, the claimants were not able to bring evidence of such negligent behaviour, but the physician had infringed an essential obligation of the so-called lex artis by not
72
73
74
As J. Solé Feliu, Comentario a la sentencia de 31 de mayo de 2006, CCJC 2007, no. 74, 869 has shown. An overview of recent case law can be found in E. Llamas Pombo (ed.), Estudios de jurisprudencia sobre daños (2006). Moreover, see A. Fernández Crende, Diez sentencias del Tribunal Supremo sobre responsabilidad civil (2005), InDret 2006 (www.indret.com) no. 336. See M. Martín-Casals/J. Solé Feliu/J.C. Seuba, Compensation in the Spanish Health Care Sector, in: J. Dute/M.G. Faure/H. Koziol (eds.), No-Fault Compensation in the Health Care Sector (2004) 351 ff. However, a Romanist approaching these issues (!), T. Giménez-Candela, Lex Artis y responsabilidad médico-sanitaria: una perspectiva actualizada, Revista de Derecho Patrimonial 2006, no. 17, 67–78, claims that the contrary is true. On medical liability related to medicines see L. Sarrato Martínez, En torno a la responsabilidad médica en materia de medicamentos, Actualidad Administrativa (Act. Adm.) 2006, no. 22, 2692–2703 and, in connection with liability of experts and civil engineers, G. Orozco Pardo, La responsabilidad civil de los técnicos: un ejemplo de la tendencia unificadora, Ar. Civ. 2006, 2047–2097.
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informing the patient adequately before the operation.75 The fact that the surgery was necessary to recover health does not change things in the least. Most notably and in keeping with previous case law, the child is awarded compensation for damage other than corporal damage even though he would have probably undergone the operation had he been duly informed.76 The novelty of the decision lies in the fact that it is the first one to resort to the concept of loss of a chance in an informed consent case in order to find for the victim. However, the concept fits badly into this context, since loss of a chance usually refers to the loss of aleatory advantages or gains and not – as was the case – to an alternative which depends on a decision by the victim.77 As a matter of fact, it is difficult to ascertain which chance was actually lost by the victim, since he would have experienced the same damage had he been duly informed. Moreover, the device of the loss of a chance gives rise to problems in determining the chance and assessment of damage.78 Probably, a better rationale for the decision would have been based on the fact that the victim had not really given his consent to the operation due to a lack of information and therefore that his personal autonomy and human dignity (art. 10 Constitution) had been violated – even if, as has been said, the victim had no alternative.79 5. STS 21.6.2006; RJ 2006, 3080: Liability for Acts of Others a) Brief Summary of the Facts
A person had underwritten a private health care insurance (contrato de seguro de asistencia sanitaria) by which, for a premium, she could benefit from the medical services provided by a list of independent hospitals and physicians with whom the insurance company – Cajasalud de Seguros y Reaseguros S.A. – had previously agreed on the provisions of these services in case they were needed by its policy holder. The policy holder gave birth in one of the hospitals included on the list provided by Cajasalud and the midwife negligently gave an injection to the newborn child affecting one of his nerves, which then required surgery and caused permanent impairment.
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b) Judgment of the Court
According to the Supreme Court, “there is no doubt” that the facts fall within the rule of liability for acts of others laid down by art. 1903.4 CC. Consequently, the decision considers that a relationship of dependence or subordination between the person causing harm and the insurance company exists and 75
76
77
78
79
See now M.P. García Rubio, Incumplimiento del deber de información, relación de causalidad y daño en la responsabilidad médica, in: E. Llamas Pombo (ed.), Estudios de Derecho de obligaciones. Homenaje al profesor Mariano Alonso Pérez (2006) I, 801–827, 805. See M. Martín-Casals/J. Solé Feliu/J. Ribot Igualada, Medical Malpractice Liability in Spain, European Journal of Health Law 2003, vol. 10, no. 2, 159. On this restrictive concept of loss of a chance see M. Martín-Casals/J. Solé Feliu, Comentario a la sentencia de 7 de junio de 2002, CCJC 2002, no. 60, 1115. See M. Arcos Vieira, Responsabilidad sanitaria por incumplimiento del deber de información al paciente, Ar. Civ. 2006, fn. 90 and accompanying text. As J. Ribot Igualada, Comentario a la Sentencia de 10 de mayo de 2006, CCJC 2007, no. 74, 773 correctly argues.
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holds the insurance company “vicariously liable” (responsabilidad vicaria), i.e. without any need of fault or culpa in vigilando or in eligendo of the insurer. It is not required for the insurer to be able to control the activity of the professional who actually caused damage directly. c) Commentary
46
The present decision is in keeping with the trend established by some previous judgments. Instead of analysing whether in the particular case there was a relationship of subordination between the insurance company and the midwife – as was done until the late 90s – the Supreme Court states that the “enterprise”, i.e. the insurer, is liable “on a direct basis”. However, in addition to the fact that the decision hardly reasons such an approach, it radically departs from the terms required by the law to establish liability for the acts of others, since art. 1903 CC sets fault of the principal as a condition for holding him liable for acts or omissions of his dependents (among others see STS 18.7.2006 [RJ 2006/4956]).80 So, for instance, a firm is liable for damage intentionally caused by its security guard whom it selected in a negligent way (STS 20.7.2005 [RJ 2005/5099]).81 Also, a security company is liable for having negligently failed to supervise (culpa in vigilando) the negligent use of a revolver belonging to the company by its head of security (STS 7.9.2006 [RJ 2006/6521]).82 Therefore, liability is justified in the case where the insurer has behaved negligently because of having chosen an incompetent physician, but this rationale cannot be extended to other cases where such a requirement is not met. In failing to realise this, the Supreme Court has overlooked the fact that health insurers do not really provide – in cases such as the present one – medical care, but simply pay for the costs of and manage medical care provided by a third, independent party chosen by the insured person.83 6. STS 28.9.2006; RJ 2006, 8716: Product Liability84 a) Brief Summary of the Facts
47
The claimant had suffered serious injuries to his right hand because of the explosion of a firecracker he himself had lit. He filed a claim against the seller and the producers of the firecracker both on the grounds of the Spanish Product 80
81
82
83
84
For further references see L.M. Martínez Velencoso, La responsabilidad civil del empresario por los perjuicios ocasionados por sus dependientes, Revista de Derecho Mercantil 2006, no. 261, 1121–1157. On the liability of the insurer of the firm in this case see B. Arquillo Colet, Acción directa en el seguro de responsabilidad civil y daños dolosos de vigilantes de seguridad, InDret 2006 (www. indret.com) no. 335. Cf. STS 23.2.2006 (RJ 2006/833): an old people’s home is held liable for its auxiliaries negligently not having supervised a man suffering from Alzheimer’s disease who committed suicide. See M.R. Lloveras i Ferrer, De nuevo sobre el análisis del suicidio desde el derecho de daños, InDret 2006 (www.indret.com) no. 353. For an in-depth analysis of this issue see M. Martín-Casals (ed.), Informe sobre la responsabilidad de las entidades de seguros de salud en las reclamaciones judiciales por errores o negligencias médicas, Cuadernos de Seaida 2006, no. 4, 1–133. Commented on by J.A. Díez Ballesteros, Revista de Responsabilidad civil, circulación y seguros (RC) 2007, no. 1, 57–61.
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Liability Act and the general rules of tort liability included in the Civil Code. Both the judge of First Instance and the Court of Appeal found for the defendants. b) Judgment of the Court
The claimant fails to establish the existence of the defect, since what sort of firecracker it was and whether such a firecracker was sold in individual units – or rather in strings which were not designed for detaching the individual elements and using them as firecrackers, which could be lit individually – cannot be proven. The court holds that the fact that the Spanish Product Liability Act establishes a strict liability regime does not excuse the claimant from proving the defect and from establishing the causal link. Such a link has to be proven in such a way that it is certain and the claimant cannot shift the burden of proof to the defendant on the basis that liability is based on the idea of risk. Finally, the court states in an obiter dicta that the General Act for the Protection of Consumers and Users (LGDCU)85 “complements” the Product Liability Act.
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c) Commentary
Proof of the causal link seems a recurring theme with regard to product liability.86 Even though it may be very difficult to prove that a firecracker was defective – especially after it has exploded – the decision is right in that the burden of proof of the causal link belongs to the claimant as a general rule (pursuant to art. 5 of the Product Liability Act).87 In general, Spanish courts are very reluctant to shift this burden to the defendant (e.g., two medical malpractice cases: STS 18.7.2006 [RJ 2006/4947] and STS 3rd Chamber 10.10.2006 [RJ 2006/8680], and, regarding damage suffered as a result of ice skating, STS 11.10.2006 [RJ 2006/6471]). However, the decision under comment perpetuates the mistake of considering that the General Act for the Protection of Consumers and Users reinforces or complements the Product Liability Act. As a matter of fact, the Final Disposition of the Product Liability Act provides explicitly that the LGDCU will not be applicable to damage caused by defective products. Moreover, this is a mistake which the counsel and the claimant had not made – since he had not grounded the claim on this Act – and which after the judgment of the European Court of Justice (Fifth Chamber) of 25 April 2002, María Victoria González Sánchez v Medicina Asturiana SA,88 no court in Spain – and even less the Supreme Court – should commit.
85
86
87
88
Ley 26/1984, de 19 de julio, general para la defensa de los consumidores y usuarios (BOE no. 175 y 176, de 24-07-1984). In connection with failure to warn cases see P. Salvador Coderch/S. Ramos González, Avance del Comentario InDret a la Ley 22/1994, de 6 de julio: el defecto en las instrucciones y advertencias en la responsabilidad de producto, InDret 2006 (www.indret.com) no. 389. On unsafe products see C.A. Ruiz García/I. Marín García, Producto inseguro y producto defectuoso, InDret 2006 (www.indret.com) no. 388. Ley 22/1994, de 6 de julio, de responsabilidad civil por daños causados por productos defectuosos (BOE no. 161, 07.07.1994, 21737 ff.). C-183/00, [2002] ECR I-3901.
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Albert Ruda
C. LITERATURE 1. E. Algarra Prats, La responsabilidad civil por daños causados por la caída de árboles y otras cosas (Dykinson, 2006)
50
From the vast collection of scholarly publications which came out in 2006 it seems that Spanish authors are partially rediscovering some of the few provisions on liability for tort laid down by the Civil Code. This is a good example. It deals with one of those articles which, departing from the principle of tort liability based on fault, lays down a strict liability rule, in particular, for damage caused by a falling tree (art. 1908 par. 3).89 Attention is also paid to the application of this rule to cases similar to the one expressly mentioned in it, as well as to the relationship of this provision with art. 1909 CC on liability of the architect90 and the constructor for damage caused because of a defective construction. Other works analyse liability for things that fall from a house (pursuant to art. 1910 CC),91 exploding machines and explosive substances igniting,92 and the collapse (ruina) of buildings (according to art. 1591 CC and other provisions related thereto).93 2. C. Díaz-Regañón García-Alcalá, Responsabilidad objetiva y nexo causal en el ámbito sanitario (Comares, 2006)
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A specialist in the field of liability for medical malpractice now delves into two separate issues: firstly, causation and objective imputation of damage under the strict liability regime applicable to damage caused by public authorities,94 89
90
91
92
93
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The same author had already studied other special rules referring to damage caused by toxic fumes or emissions in her previous book, La defensa jurídico-civil frente a humos, olores, ruidos y otras agresiones a la propiedad y a la persona (1995). On liability for damage caused by animals see also R. Gómez-Mampaso del Palacio, Las distintas formas de responsabilidad derivada de la tenencia de animales (2006). See a short note by J. Ruiz Jiménez, El ámbito de la responsabilidad del arquitecto en el proceso constructivo, RCDI 2006, no. 694, 754–760. See also STS 19.10.2006 (RJ 2006/8974), which holds an architect liable for collapse under art. 1591 CC. M.J. Reyes López, La responsabilidad por cosas inanimadas, La Notaría 2006, no. 30, 15–28 and A.M. Colás Escandón, La responsabilidad derivada del Art. 1910 CC y su aplicación en la práctica, Ar. Civ. 2006, 2135–2176. E. Algarra Prats, La responsabilidad civil por la explosión de máquinas y la inflamación de sustancias explosivas, in: E. Llamas Pombo (ed.), Estudios de Derecho de obligaciones. Homenaje al profesor Mariano Alonso Pérez (2006) I, 27–51. P. Sala Sánchez, El artículo 1591 CC y la Ley de ordenación de la edificación, in: R. García Varela (ed.), Derecho de la edificación (3rd ed. 2006) 517 ff.; Á. Carrasco Perera, Reparación en forma específica y reparación a costa del deudor en la responsabilidad por ruina, InDret 2006 (www.indret.com) no. 320, and R. Milà Rabel, Diez sentencias del Tribunal Supremo sobre responsabilidad por ruina (2004–2005), InDret 2006 (www.indret.com) no. 338. This first Chapter draws explicitly upon a previous paper by the same author, Relación de causalidad e imputación objetiva en la responsabilidad civil sanitaria, InDret 2004 (www.indret. com). See also his book: El régimen de la prueba en la responsabilidad civil médica (1996). On the limitation period applicable to the claim against the public authorities, D. Cuadrado Zuloaga, El plazo para ejercitar la acción de responsabilidad patrimonial, Act. Adm. 2006, no. 10, 1227–1238. For an account of the difficulties faced by the claimants in these proceedings see J.A. Torres Lana, Responsabilidad y actitud de la administración pública, Ar. Civ. 2006, 12. On tort liability of the Public Administration in connection with town planning, P. Valcárcel Fernández, La responsabilidad patrimonial de la Administración por anulación de licencias urbanísticas ilegales, demora injustificada en su otorgamiento y denegación improcedente, Revis-
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and secondly, the application of strict liability to any kind of medical services pursuant to art. 28 of the Spanish Consumer Act. The author observes that this provision is usually watered down because of the fact that court decisions relying upon it have already established liability for fault. Apart from this, he argues in favour of applying art. 28 to services provided by public authorities, thus restricting the possibility of applying a development risk defence which is allowed under the general regime of liability of the Public Administration. 3. M. García-Ripoll Montijano, Ilicitud, culpa y estado de necesidad (Dykinson, 2006) This is a praiseworthy analysis of an issue which the Spanish Civil Code does not deal with directly and which has been traditionally neglected by Spanish tort law scholars, namely, state of necessity. The author argues that the legal regime laid down by the Criminal Code is not only exceptional but confusing and rejects that such a regime can be applied to private law cases by way of analogy. Instead, new criteria are explored which may fit into the principles of the Civil Code in a better way.
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4. P. Gutiérrez Santiago, Responsabilidad civil por productos defectuosos. Cuestiones prácticas (Comares, 2nd ed. 2006) Two years after the first edition of this well-documented volume was released, the author confirms in a revised, updated and expanded edition that the Product Liability Act continues to be applied very little, in general, and is mostly unknown to Spanish courts.95 Among factors which may explain this, the general reversal of the burden of proof of fault under the general regime of art. 1902 CC,96 the restrictions laid down by the special regime itself and a certain distrust of legal professionals – and judges in particular – in relation to the nownot-so-new product liability regime are mentioned.97
95
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ta de Derecho Urbanístico y Medio Ambiente (RDUMA) 2006, no. 229, 55–110 and G. García Álvarez, La modulación de la responsabilidad de la Administración en determinados casos de ejercicio ilegal de potestades urbanísticas, Revista de Administración Pública 2006, no. 169, 157–188. See also M. Gili Saldaña, Responsabilidad de la Administración por el posible contagio de la nueva variante de la enfermedad de Creutzfeldt-Jakob, InDret 2006 (www.indret.com) no. 315. On tort liability of some public entities, Á. Ballesteros Fernández, La responsabilidad patrimonial de los entes instrumentales de la Administración y la entidad matriz, Revista de Estudios de la Administración Local y Autonómica 2006, no. 300–301, 565–579. Moreover, see the short note by C.P. Pita Broncano, La responsabilidad patrimonial de la Administración, AFDUE 2006, 119–126, and L. Medina Alcoz, Confianza legítima y responsabilidad patrimonial, Revista Española de Derecho Administrativo (REDA) 2006, no. 130, 275–326. Finally, see, with special reference to British, French and EU Law, J. Bell, Governmental Liability: Some Comparative Reflections, InDret 2006 (www.indret.com) no. 322. As M. Martín Casals/J. Solé Feliu, Aplicación de la Ley de responsabilidad por productos defectuosos: la explosión de una botella y el defecto de fabricación, Diario La Ley, 20 June 2003, no. 5807, 1 ff., had already established. See M. Martín-Casals/J. Ribot/J. Solé, Compensation for Personal Injury under Spanish Law, in: B.A. Koch/H. Koziol (eds.), Compensation for Personal Injury in a Comparative Perspective (2003) 245 and 261. For a comparison with other liability regimes see now A. Serra Rodríguez, La responsabilidad del productor en la Ley de garantías en la venta de bienes de consumo, Revista de Derecho Patrimonial (RDPat) 2006, no. 16, 121–144.
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Albert Ruda
5. L.A. Marco Alcalá, Seguros de personas. Aspectos generales (Thomson Aranzadi, 2006)
54
As its title expresses, this is a study on the general aspects of personal insurance which, according to the Insurance Contract Act, refers to all kinds of risks affecting the existence, health or corporal integrity of the person. The author gives an account of the evolution of this sort of insurance and its current position in the insurance market. He also offers us a review of other modalities of personal insurance not specifically referred to by the Act.98 6. A. Orti Vallejo (ed.), Responsabilidad civil por daños causados por servicios defectuosos (Thomson Aranzadi, 2006)
55
This volume, written by more than 20 authors, deals at length with liability for damage caused by so-called defective services, i.e. damage caused by medical services, assistance and social work, transport99, tourist services (travel agencies and the like), leisure activities (amusement parks, discotheques, camps, etc.), sports, and shows (specially those involving bulls or fireworks). Insurance is studied as well. A pervasive idea in the book is that the existing statutory regime deals insufficiently with these issues, whereas contradictions abound in the enormous number of court decisions on the subject. 7. A. Pigrau i Solé (ed.), Nuevas perspectivas de la responsabilidad por daños al medio ambiente, Ministerio de Medio Ambiente (2006)
56
The seriousness of the problems related to environmental degradation on a global scale seems now so well known that the need for a decisive response cannot be ignored any longer. No doubt legal scholars may have an important role to play in this area.100 This volume collects together the papers presented at a seminar which took place in January 2006 at the University Rovira i Virgili, Tarragona, on the Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on Environmental Liability with regard to the Prevention and Remedying of Environmental Damage.101 Since not only scholars but also the officials in charge of writing the Spanish draft bill discussed their proposals here, this publication may provide some interesting insights into the 98
99
100
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On the evolution of Spanish insurance law, F. Sánchez-Calero/J.L. García-Pita y Lastres, Evolución del Derecho del seguro privado en España: 1960–2004, RES 2006, 7–39. See also the bilingual Spanish-English Dictionary on insurance terms by J.R. del Pozo, Diccionario bilingüe de expresiones y términos de seguros: inglés-español, español-inglés (2006). On prospective maritime insurance law, see J.M. Martín Osante, Disposiciones generales y comunes del seguro marítimo en el anteproyecto de 2004, Revista de Derecho Mercantil (RDM) 2006, no. 259, 115–167; by the same author, Seguro marítimo, RES 2006, no. 126, 265–306; also J.L. García-Pita Lastres, El régimen del seguro marítimo en la propuesta de Anteproyecto de Ley General de Navegación Marítima, RES 2006, no. 125, 105–131. Moreover see C. Rojo Álvarez-Manzaneda, La responsabilidad civil por servicios de transporte terrestre que afectan a la seguridad de las personas, RDM 2006, no. 259, 55–113. On the liability of professionals in general, see also R.P. Rodríguez Montero (ed.), Responsabilidad civil de profesionales y empresarios (2006). As do lawyers in general. See J. Spier, Legal aspects of global climate change and sustainable development, InDret 2006 (www.indret.com) no. 346. OJ (Official Journal) L 143, 30.4.2004, 56–75.
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statute which will transpose the Directive into Spanish law.102 Other works have been published on the Directive,103 on non-pecuniary loss with regard to environmental damage,104 on damage caused by the passivity of public authorities in connection with continuing noise,105 on the compensation regime applicable in the Prestige oil spill case,106 on private international law issues,107 and several other aspects.108 8. J.R. de Verda y Beamonte (ed.), Daños en el Derecho de familia (Thomson Aranzadi, 2006) Several scholars from the University of Valencia and two from Chile have gathered together the lectures of a course on some issues directly or indirectly related to tort and family law. In particular, they deal with liability for erroneous prenatal diagnosis, prenatal injuries, non-pecuniary loss derived from the parent not having acknowledged paternity, breach of betrothal, breach of marital duties,109 breach of visiting times,110 damage arising from nullity of marriage and economic consequences of the breach of de facto partnership.111 102
103
104 105
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On the Spanish draft see Ribot/Ruda (fn. 45) 537; A. Ruda, Comentario a la Sentencia de 14 de marzo de 2005, CCJC 2006, no. 71, 695–744, 734, and F. Gómez Pomar/M. Gili Saldaña, Responsabilidad por daños al medio ambiente y por contaminación de suelos: problemas de relación, InDret 2006 (www.indret.com) no. 337. E. Moreno Trujillo, De nuevo sobre la responsabilidad civil por daños al medio ambiente, in: E. Llamas Pombo (ed.), Estudios de Derecho de obligaciones. Homenaje al profesor Mariano Alonso Pérez (2006) II, 463–487; M.J. Vaquero Pinto, Responsabilidad civil por daño medioambiental, Revista de Derecho Privado (RDP) 2006, May–June, 35–62; J. Jordano Fraga, La responsabilidad por daños ambientales en el Derecho de la Unión Europea, in: A. García Ureta (ed.), Estudios de Derecho ambiental europeo (2006) 62–105; V.M. Moralo Iza, En torno a la inminente incorporación al ordenamiento jurídico español del régimen de responsabilidad ambiental comunitario, RDUMA 2006, no. 223, 167–208. Finally, on pure economic loss see now M.Á. Parra Lucán, Daños puramente económicos, Act. Civ. 2006, 268–283. G. Yanguas Montero, El daño no patrimonial en el Derecho del medio ambiente (2006). Mª F. Moretón Sanz, La tutela contra los daños derivados de la contaminación acústica en los supuestos de inactividad de los entes locales, RDP 2006, September-October, 97–117. M.P. García Rubio, The Prestige Case, in: M.G. Faure/J. Hu (eds.), Prevention and compensation of marine pollution damage (2006) 165–178. M. Vinaixa Miquel, La responsabilidad civil por contaminación transfronteriza derivada de residuos (2006) and A. Crespo Hernández, Daños al medio ambiente y regla de la ubicuidad en el art. 8 del futuro Reglamento de Roma II, InDret 2006 (www.indret.com) no. 366. I. Sierra Gil de la Cuesta (Dir.), Responsabilidad civil medioambiental (2006) and M.Á. Parra Lucán, El Derecho civil del medio ambiente, RC 2006, no. 4, 4–24. See also, from the point of view of the protection of fundamental rights, L. Martín-Retortillo Baquer, La defensa cruzada de derechos: la protección del medio ambiente en la jurisprudencia del Tribunal Europeo de Derechos Humanos, REDA 2006, no. 132, 727–746. See also M. de A. Novales Alquézar, Hacia una teoría general de la responsabilidad civil en el Derecho de Familia. El ámbito de las relaciones personales entre los cónyuges, Revista jurídica del notariado 2006, no. 60, 197–218 and M.T. Marín García de Leonardo, Separación y divorcio sin causa. Situación de los daños personales, RDPat 2006, no. 16, 145–162. On liability for damage due to the victim being wrongfully deprived of the company of his/her children, see M.Á. Roig Davison, Indemnización por la privación indebida de la compañía de los hijos, InDret 2006 (www.indret.com) no. 333. On this issue see also L. Blanco Pérez-Rubio, Indemnización por ruptura unilateral en la unión de hecho, RDP 2006, March–April, 3–32. The book has been reviewed by J. Ribot Igualada, Anuario de Derecho Civil (in press).
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9. M. Valmaña Ochaíta, La responsabilidad civil derivada del folleto informativo en las ofertas públicas de suscripción y venta de acciones, La Ley (Wolters Kluwer, 2006)
58
This doctoral thesis tackles so-called prospectus liability under company law. Although it is mainly the Spanish legal regime which is examined,112 many foreign materials – especially the extensive German literature on Prospekthaftung – are thoroughly discussed. This leads the author to point out the shortcomings of the present regime, e.g. those on the issue of the plurality of tortfeasors113 and many others. 10. P. Domínguez Martínez, Conflicto de jurisdicción en materia de responsabilidad de las Administraciones Públicas por daños sufridos en accidentes de tráfico, Aranzadi Civil 14 (2006) 15–46
59
Just as we expected, the statutory reform which took place in 2003 on the jurisdiction of administrative courts in claims against the liability insurer of public bodies has triggered new problems.114 The present article tackles those arising from traffic accidents when the driver is a public official. The author argues that it would have been preferable to attribute jurisdiction not to administrative but to private law courts, not only because they have wider experience in dealing with these accidents,115 but also because it would have been more in accordance with the rule followed in several other European countries. After an acute analysis, it is concluded that it is possible to file a claim directly before the private law courts against the insurer of the public authority only. 11. M. Martín-Casals (ed.), Informe sobre la responsabilidad de las entidades de seguros de salud en las reclamaciones judiciales por errores o negligencias médicas, Cuadernos de Seaida, 4 (2006) 1–133
60
In 2004, the Professional Association of Spanish Insurers (UNESPA) entrusted Prof. Martín-Casals, Girona, to write a report on the liability of medical care insurers. UNESPA was probably worried about several court decisions holding these entities liable for damage caused by physicians even in the absence of a negligent behaviour of the insurer itself.116 The report analyses the relevant 112
113
114
115
116
See mainly Real Decreto Ley 5/2005, de 11 de marzo, de reformas urgentes para el impulso de la productividad y para la mejora de la contratación pública (BOE no. 62, 14.03.2005, 8832 ff.). For further reading see also M.I. Grimaldos García, Algunos apuntes acerca del desarrollo reglamentario de la responsabilidad civil derivada del contenido del folleto, Revista de Derecho Bancario y Bursátil 2006, no. 102, 271–279. See also, from the point of view of economic analysis, C. Gómez Ligüerre, Solidaridad y prevención, InDret (www.indret.com) 2006. See already Ribot/Ruda (fn. 58) 385. See also O. Azcona Lucio, La cobertura de RC para las Administraciones Públicas, RC 2006, no. 3, 54–61, according to whom insurance cover of these risks is still very limited. An updated overview of the regime applicable to these claims can be found in M. Montero Casillas, Ejecución de acciones civiles derivadas de accidentes de tráfico, Iuris 2006, no. 104, 51–60. Liability for the acts of others requires fault of the principal, pursuant to art. 1903 CC. See now L.M. Martínez Velencoso, La responsabilidad civil del empresario por los perjuicios ocasionados por sus dependientes, RDM 2006, no. 261, 1121–1157.
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statutory regime and case law with surgical precision and highlights the risks of merely “cutting and pasting” in the key court decisions, which have not paid due attention to the factual settings of the cases. Other conclusions of the report have already been referred to.117
117
See the STS 21.6.2006 commented on above (no. 44–46).
XXIII. Sweden Håkan Andersson
A. INTRODUCTION 1
The harvest of Swedish tort law in 2006 was good. Many interesting cases contributed to the ongoing discourse. A feature that could be worth mentioning is the development of differentiations and nuances. When a concept or a case situation occurs now and again, the courts have a tendency to watch out for many differences instead of a few bright line rules and the unitary common core. Thus, a scholar should keep an eager eye on such nuances and peculiarities. The common urge for unification and general principles on a European level seems to meet a reaction on the national level (at least the Swedish and maybe Scandinavian level). If the comparative scholars and “unificators” are searching for clear-cut and simple principles, the national lawyers and judges are also interested in details and differentiations. This could also be of interest for those who strive for unification; at least the comparative activity can give impulses for legal scholars to search for more flexible and open structures. A quest for different solutions (due to argumentative nuances) to different problems can be as intriguing as being in search of the lowest common denominator. Therefore, the title – or subheading of this article should read “Tort law differentiation – legal narrative embracing both detailed distinctions and common core”.
B. LEGISLATION 2
There was no new legislation of particular comparative interest in 2006.
C. CASES 3
From a Swedish point of view, the year brought forward many interesting cases. However, from a comparative and European standpoint not all of the problematic issues would be worth mentioning (at least since the pages of the Yearbook contributions are limited). Therefore, in the following paragraphs, I restrict the text to only three groups of cases. Thereby we can also see some lines of development. Maybe the systematization of the legal issues – espe-
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cially in the first group – can give some food for thought when comparing the issues in other countries as well. The groups are psychiatric shock cases, sex crime cases and discrimination compensation cases.
PSYCHIATRIC SHOCK COMPENSATION 1. Supreme Court, Högsta domstolen, 5 April 2006, [2006] NJA, 181: Psychiatric Injury to Secondary Victim (I) – Differentiation Regarding the Relevant Damage to Primary Victim a) Brief Summary of the Facts
Two young men began to argue in a discotheque and continued outside, where one of them, with great force, hit the other in the head with a five-kilo heavy iron rod. The victim underwent medical care, including head surgery and had to stay in hospital for some months. The first two weeks he was in a coma; during this phase, the victim’s life was in danger and the outcome was uncertain, which caused the relatives (mother and brother) substantial distress. In the criminal case, the offender was sentenced to three years in prison for attempted manslaughter. The mother and brother also sued the offender for compensation for the psychiatric harm they had suffered during the weeks when their next of kin was vacillating between life and death.
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b) Judgment of the Court
The Supreme Court initially mentioned that there is no rule directly applicable, since the Swedish Tort Liability Act chap. 5, sec. 2 stipulates compensation only if the direct victim was killed; in such a case those who were particularly close to him can get compensation for their own bodily injury due to the event of death. The Court stated that it previously had been rather restrictive in moving beyond that rule. Nevertheless, the preparatory works declared that the intention was not to exclude compensation to relatives in individual cases even when the injury had not been mortal. This prospect was discussed in the preparatory works, especially in cases of family members who had witnessed the accident, but the exemplification also includes the situation when a person has been vacillating between life and death.
5
The Court maintained that the restrictive legal usage in this area should be continued. Nevertheless, in this case, where the defendant had intentionally exercised violence which had led to life-threatening injuries over a not insignificant time, tort compensation could be justified. The Court emphasized that under such conditions, the psychiatric injury to relatives could be seen as a typical and expected consequence. Only the mother was given compensation in this case; she had lived together with her teenage son, but the brother had not been living with the other two. The mother received a non-pecuniary compensation sum equivalent to € 1,000.
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c) Commentary
7
As always when gradual expansions are being discussed for some time, it is possible to observe – as a traditional legal technical argument – an ambition to stabilize the system by the ideal to seek, in positive terms, to present the exact criteria that are valid for the legal consequence to enter. To analyze this legal field, I intend to utilize an alternative approach. Instead of “as a lawmaker” striving to uniformly propose a “rule” – with several criteria bound together in a linear narrative – my “legal scientific” ambition is to visualize how substantial decisions or judgments can be legitimized based on the interaction (and combination) of various themes characterizing the discourse within the field. With this purpose and in reference to shock damages, I have chosen to present five parameters around which legal issues seemingly oscillate; thereby the illustration and development of the discourse in a concrete legal issue could be enriched. From a broad international comparison, it can be noted that various issues have been raised during discussions of shock damages – and several grades of responses to these questions (i.e. “parameters” according to my proposed terminology) can be read. My ideal is therefore rather to see the interaction than to propose the only criteria-based sequence, which would build the ultimate legal narrative. This proposed method is a theoretical and practical handling of the maxim for the article (i.e. its subheading): To seek differentiation in legal argumentation is a quest for the small details that build up the legal narrative in concrete cases – not only a quest for the common core of a singular rule.
8
Parameter 1 (P1): Character of the initial damage. The issue under this parameter is what kind of damage was caused, which subsequently led to the mediate shock damage. The strongest argument for granting compensation relates to cases of death, and it is only this situation that is covered by the Swedish Tort Liability Act. Nevertheless, also other serious damage can become relevant (at least under an inventory of future options for discussion). Thus, a possible graduation would be to place the death cases on the highest level of this parameter, and beneath them place the life threatening damage, after which other serious damage or violations against the immediate sufferer can be included. At the lowest level on a described scale of this parameter, we find property damage. However, even under this category further graduations may be considered, as for instance in reference to pets (cats and dogs, and perhaps horses, are usually perceived as members of the family; personally I often consider cats as more human than humans … but that is just an example of a possible differentiation). Lower argumentative value would be applicable for the home (house or apartment) which further graduates down to the level of personal property. Under Swedish law, prior to the current case, this parameter had not been tried in reference to various grades of personal damage below death cases. However, two cases have touched upon relatives’ tort claims in reference to various crimes against family members. In [1995] NJA, 269 a father took the couple’s one-year old son to Tunisia and left him there. The psychological problems the mother suffered from as a result of this incident were regarded as a basis for tort compensation, due to the fact that the action “to a significant
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extent” was considered as “directed against her”. Notwithstanding, in a later case, [2003] NJA, 508, the outcome was the opposite. The parents of a fouryear-old boy had suffered psychological shock due to the abduction of their child by a paedophile over a period of approximately twenty-four hours. The Supreme Court found that the crime the paedophile was guilty of could not be considered “to be in such a substantial way directed against the parents that compensation should be granted on this basis”. Parameter 2 (P2): The personal relation. The issue here is to investigate the relational ties between the immediate victim and those indirectly affected. The strongest argument for compensation can be brought forward in relation to the closest relatives, i.e. the family members who were living together with the direct victim. In addition, other personal circles have been considered in specific cases under international practice: in such cases, it is particularly relevant whether other enforcing arguments may legitimize compensation, for instance in situations, which are discussed below under parameters (P3) and (P5).
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Parameter 3 (P3): The factual connection. By this parameter, it is possible to ascertain how the person entitled to compensation (according to P2) is affected by the initial damage (according to P1). The strongest argument for compensation is the direct witnessing of the damaging incident, and under this highest score on the parameter, it is possible to consider situations when someone subsequent to the incident arrives on the scene of the accident in its immediate aftermath. Lowest factual connection is if the shock damage occurs merely by later knowledge, i.e. when informed of the incident. In case law ([1993] NJA, 41 I–II) and subsequent legislation (Swedish Tort Liability Act chap. 5, sec. 2), it has likewise been clarified that this lowest level of factual connection is enough to compensate shock damage due to death cases.
10
Parameter 4 (P4): Character of the secondary victim’s damage. By this parameter, it is possible to differentiate between various types of effects upon the indirect sufferer. The strongest argument for compensation is if the effect can be described as personal damage. The Supreme Court’s judgment, [2000] NJA, 521 shows that not too strong evidence is required; it is even possible to presume that the effects on individuals who fall under the criterion of close relatives under parameter (P2) are referred to the category “personal damage”. For the future, it is possible to discuss lower levels on this parameter, such as various non-pecuniary aspects due to grief or sorrow, etc.
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Parameter 5 (P5): Sphere of the tortfeasor. Under this parameter, various circumstances relating to the tortfeasor can be evaluated. The strongest argument for compensation is intentional crimes, but as a possible future theme to consider, various scenarios of motives and other circumstances that refer to the sphere of the tortfeasor could also become relevant. The Swedish Tort Liability Act chap. 5, sec. 2 does not make any distinction in reference to this parameter. Thus, beyond the intentional cases also gross negligence, ordinary negligence (culpa) as well as strict liability cases are covered by the regulation.
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13
As was mentioned above, the issue of shock damages reveals several components that are difficult to include within one clear rule that with one uniform formula would resolve all different constellations of case situations. It is rather the possibility of combinations of various matters on different levels of argumentation which – for the future – can pave the way for a gradual development (and which – today – can be a feasible way of analyzing and sorting out the issues). In such a circular form of argumentation, it can be noted how a “lower” value on one of the parameters might be compensated by a “higher” level on another. Thereby the traditional legal narrative with the straightforward question “either/or” and the straightforward answer “yes/no” respectively could be undermined and challenged by a more combinatorial and interactive legal discourse – i.e. a differentiated narrative on several levels.
14
In this case, three special circumstances explicitly produced the positive outcome. I will describe them as “requirements” (R1)–(R3) that motivated the Supreme Court to make this exception from the main rule: The offender had used (R1) “intentional violence” towards the direct victim. In addition, thereby the victim had suffered (R2) “life threatening damage”. Moreover, this critical condition continued for (R3) “a not insignificant time”.
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In relation to the regulated compensation for relatives in cases of death, a criterion of intention has been added (R1) in reference to violence (instead of the neutrality in regard to forms of liability which characterizes the Swedish Tort Liability Act chap. 5, sec. 2). Perhaps it does not have to be spelled out, but of course, the wording means that the tortfeasor in practice has to have committed a “crime”. The requirement (R1) (“intentional violence”) thereby shows sharpened demands in reference to the sphere of the tortfeasor, i.e. parameter (P5). The broad application of all liability forms in cases of death under the Swedish Tort Liability Act chap. 5, sec. 2 is therefore abandoned in this case concerning life threatening but not mortal cases.
16
By the requirement of life threatening damage (R2), the compensation rule is expanded only marginally to situations when it can be assumed that it is more or less a coincidence if the consequence is fatal. The requirement “life threatening damage” (R2) therefore has some connection to the highest value on the parameter concerning initial damage (P1), i.e. “death”. Thus, it is not whichever “serious damage” that counts on the levels beneath the worst-case scenario, but a damage scenario is required where the risk of the most serious case apparently is acute.
17
Finally, with some help from the time aspect (R3) we get another restriction. A relative’s shock damage has to have appeared not only as a result of knowledge that the immediate sufferer’s life was suddenly endangered; it is required that the relative, over a period of time, was justifiably worried about the potentially mortal outcome. We see under the requirement “a not insignificant time” (R3) some restriction in comparison to the parameter concerning the factual connection (P3). The neutrality regarding the way the mediate effect occurred, which parameter (P3) expresses in relation to death cases, has by requirement (R3) been added with an argumentatively sharpened modification.
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By these three requirements, a somewhat limited field is established in reference to the development of compensation for shock damage. Such a concretizing framing of the compensation situations does not pave the way for a general rule. The legal surface does not give – narratively speaking – rise to a completely free release of multiple considerations within the underlying legal argumentative levels. By placing the requirements (R1)–(R3) in the analysis in relation to specific themes from the parameters (P1), (P3) and (P5), a clear boundary of the field of discourse can be observed. The strategy is not to challenge the harmony of the legal surface too much. Under such circumstances, differentiation is a good thing for legal discourse – i.e. differentiation within the boundaries of parameters (P1)–(P5) and – in this case – by the use of requirements (R1)–(R3).
18
Consequently, this case is not evidence for a principle breakthrough of parameter (P1) in reference to the character of the initial damage. The judgment does not generally lower the fundamental requirement of “case of death”, but merely shows that in combination with the highest value on parameter (P5) in reference to the tortfeasor – “intentional causing of damage” (by a violent crime) – the lower value, “life threatening damage” on parameter (P1) may be enough to allow compensation to close relatives who suffered from shock.
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2. Supreme Court, Högsta domstolen, 29 December 2006, [2006] NJA, 738: Psychiatric Injury to Secondary Victim (II) – Differentiation Regarding the Standard Amount a) Brief Summary of the Facts
A drunken driver caused a car collision where a young pregnant woman was killed. In the criminal case, the driver was sentenced to two years imprisonment for the drink-driving charges. In the civil case, the parents and the common law husband (the would-be father) sued the driver for non-pecuniary compensation due to their psychiatric injuries. These close relatives are unproblematic from a legal point of view when dealing with the provision of the Swedish Tort Liability Act (chap. 5, sec. 2), i.e. they have a right to compensation for their injuries following the deceased relative (cf. parameter (P2), supra no. 9).
20
The problematic legal issue in this case was if a higher standard amount could be justified. As a reason for enhancement, the relatives invoked that since the drunken driver was grossly negligent, the situation was close to intentional killing (and in such cases of intent, prior court cases have established a double standard amount compared to cases of negligent killing).
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b) Judgment of the Court
The Supreme Court initially mentioned that the different kinds of injuries, which could come into existence as a result of the death of a relative in general are not of such a magnitude and character that a higher amount than those in the standard tables can be justified. These tables specify a non-pecuniary sum equivalent to € 2,700 in the current situation. This sum is based on a presump-
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tion of 12 months’ convalescence without hospitalization. The main rule of solely one standard amount has nevertheless met with some exceptions. In [2004] NJA, 26, the Supreme Court applied the double sum (i.e. € 5,400) in a case of intentional killing; this doubling was justified by the fact that the character of the deed can be decisive for the intensity of the secondary victim’s affliction.
23
However, the defendant in this case was not a “murderer”, merely a “drunkdriver”. The Court therefore had to consider if a deviation from the standard table could be warranted even in cases of grossly negligent actions. According to the Supreme Court, the purpose of using standard tables is to simplify the adjudication process. This purpose would be counteracted if many different standard amounts were applicable depending on the circumstances of different situations. The Court was divided on how to put this purpose into practice. The minority found that this kind of grossly negligent killing had a completely different character to intentional killing, but since the psychiatric predicament can be presumed to be greater in cases of gross negligence than in cases of ordinary negligence, a standard amount somewhere between intentional (€ 5,400) and ordinary negligent (€ 2,700) actions was justified – the central position was € 4,300.
24
The majority of the Supreme Court reached another judicial decision. It was assumed that psychiatric injuries caused by “grossly negligent actions which come very close to an intentional action”, are generally more severe than if the defendant has only been ordinarily negligent or is liable due to strict liability. The above-mentioned purpose – to simplify – was invoked to make an exception from the ordinary table sum, i.e. the plaintiffs were given the higher amount equivalent to € 5,400. c) Commentary
25
Above (supra no. 8–12) a model of analysis concerning shock cases was introduced with five parameters (P1)–(P5). It is clear from the judgment that arguments referring to the above-mentioned parameter (P5) “sphere of the tortfeasor” affected the outcome of the case. The standardized calculation did touch upon parameter (P4) “character of the secondary victim’s damage”, but the deviation from the standard (i.e. the doubling) was motivated by the fact that the tortfeasor had shown gross negligence “which comes very close to an intentional action”. This (P5)-argument in reference to the sphere of the tortfeasor was combined with an attendant (P4)-argument in reference to the part of the damage sufferer, namely that psychological problems caused by such an act “generally become more serious” than in ordinary cases of negligence (culpa).
26
The extensive formulation of the requirement “grossly negligent action which is very close to an intentional act” is known from other judgments of compensation cases regarding relatives. To simplify, it is possible to label the criterion “quasi-intention” (i.e. such grossly negligent action that it is “almost”
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intentional, or that the situation can be regarded “as if” it were intentional). Initially, the requirement was used in cases to permit compensation at all (i.e. before the regulation in Swedish Tort Liability Act chap. 5, sec. 2, this requirement was used to motivate compensation even in cases where the tortfeasor had not intentionally killed the primary victim). Later the “quasi-intention” was involved in discussions on how deviations from the standard can be made regarding the decision of compensation. Thus, the bridgehead of what can be labelled (a) “the issue of liability” has subsequently expanded the domain of the criteria towards a broader field of application, namely (b) “the issue of compensation”, i.e. as in this case, the question of how standards and deviations therefrom should be applied. In the above-mentioned (supra no. 4–19) [2006] NJA, 181, the parameter (P5) regarding intentional violence was used as an argument supporting compensation even when the direct victim was not killed but merely suffered life threatening damage for a not insignificant time i.e. that case gave an answer to the question of (a) the issue of liability. The really interesting aspect is that we, in the case [2006] NJA, 738, can see that the circumstances around the tortfeasor’s actions under parameter (P5), beyond utilizing it as an argument under the broader (a) “issue of liability”, can also affect the minor details under (b) “issue of compensation”. The issue of liability may be regarded as the primary issue which the development of practice has focused upon. Legislation has “dealt with this issue”, i.e. the preconditions regarding when a tortfeasor is liable towards the secondary victims. When the legal issues have become centred around (a) “the issue of liability” it is possible to see how the activity of the discourse moves towards more marginal issues of details. Beyond the “larger main lines” (the “actual principles of liability) the legal margins are somewhat becoming populated. Differentiated details, such as in reference to (b) “the issue of compensation”, will then attract interest. Instead of situations when (P5)-arguments about the tortfeasor’s action merely deal with the primary issue of a tortfeasor’s liability towards relatives, similar styles of reasoning have been allowed to affect the calculation regarding how high the granted amount should be (when liability has already been established). According to the currently utilized model of analysis, these issues of compensation can be said to affect parameter (P4) in reference to indirect damage.
27
In the case [2004] NJA, 26, the Supreme Court demonstrated the recently mentioned diversified use of argumentation by arguing for a doubling of the standardized amount of compensation in a case when the tortfeasor intentionally killed the immediate victim. That this was not a one-time incident of discourse could be seen in [2006] NJA, 181, when the intentional violent crime was argued as an exception to the requirement of death, i.e. a high level of (P5) was combined with a lower level of (P1) in the actual (a) issue of liability. Moreover, the “methodical lessons” of the 2004 case consequently continues with [2006] NJA 738, under (b) the issue of liability. Thus, we can see that it is being connected to a “quasi-intention”, which was used in [1996] NJA, 377 as an argument under (a) the issue of liability. However, as a subsequent development, the interest in the greater principal issues of preconditions of liability
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have been exchanged and decentralized to the discourse’s margins of (b) the issue of compensation, i.e. the extent of the non-pecuniary compensation.
29
For the future, one could maybe expect – or at least be prepared to pay attention to – other combinations of high and low values on various parameters. In this way a degree of flexibility would be introduced, without which we would only evaluate one and the same issue instead of the plurality of issues on various levels as we have seen some examples of above.
30
Thus, what the judgment shows is that severe circumstances on the part of the tortfeasor could affect the standardized amount. However, one should keep in mind that the standard tables refer to an estimation of the secondary victim’s non-pecuniary damage – not an evaluation of the tortfeasor’s action. There are various degrees of psychological effects that should be weighed. This evaluation of the indirect damage to the sufferer, i.e. what under the currently presented model refers to parameter (P4), should consequently have some connection to the investigated severe circumstances of action of the tortfeasor (P5). This connection of the degree of the effect upon the extent of the sufferer’s damage is pointed out in this analysis, exactly because one should avoid the misunderstanding that the doubling of the standard amount is a punitive intervention by penal law into tort law.
31
The prospect of further combinational paths of argumentation between high and low parameter values can be something to pay attention to when approaching these problems in the future. The last word on the matter of this described development has not yet been said, but we are beginning to crystallize certain patterns of the discourse. A preliminary observation is that the nuances of the standard tables may be included within a frame of “standardized” deviations from standard table differentiation. These currently given majority and minority votes show a possible stretch in future developments. However, valid for now is the possibly double – or standardized – message of what we, as a pun, could call “standardized compensation and standardized deviation from the standards through not too many standards of standardized deviations”!
COMPENSATION FOR SEX CRIME VICTIMS 3. Supreme Court, Högsta domstolen, 7 March 2006, [2006] NJA, 79 I–II: Differentiated Legal Evaluation of Crime Characterization and Non-Pecuniary Damages a) Brief Summary of the Facts
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The two cases I–II deal with sex crimes committed by men about 25 years old to girls in their early teens. According to a change in the Swedish Penal Code in 2005, the crime label “rape” should be used when referring to two different crime descriptions. As before (and as in most countries) “rape” is the legal labelling of sexual intercourse that someone has been forced to by
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assault or other use of violence or threat of criminal offence (Swedish Penal Code chap. 6, sec. 1). The penalty is from two to six years imprisonment. The same crime label (“rape”) and sentence is also used for another crime description, namely intercourse with a child under fifteen. In the case of “rape against a child”, the crime description in the Swedish Penal Code chap. 6, sec. 4 does not mention any assault or violence, i.e. even voluntary intercourse is labelled “rape”. If the circumstances of the actual crime are considered less serious, the labelling “undue sexual exploitation of a child” (Swedish Penal Code chap. 6, sec. 5) is used; thereby the sentence is imprisonment up to four years. In case I the girl was 13 years and 10 months old. The girl and the young man said that they had been in love for a while and that they had planned the sexual intercourse together. The Court therefore had to presuppose that the girl – subject to reservations for her age and maturity – had acted by free will and that the intercourse was characterized by mutuality.
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In case II the girl was 14 years and 10 months old. The young man had a sexual relation with the girl’s mother, but on the night in question the minor and the young man had been at a party together. They had drunk, danced and kissed, and after the party they went to the man’s apartment, where they had sexual intercourse. In Court, the girl first stated that she had told the man that she did not want to have sexual intercourse, but she also said that she was not sure if the man had understood. Therefore, the Court had to view the situation as if the man had viewed the intercourse as voluntary.
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In both cases there was a criminal case concerning “rape against a child”. In the parallel civil cases, the two girls sued the men for non-pecuniary tort compensation for aggravated damages due to the criminal offence.
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b) Judgment of the Court
In both cases, the Court found that the circumstances were not so serious that the crimes could be labeled “rape against a child”, i.e. instead the label “undue sexual exploitation of a child” was used. In case I, the man was sentenced to six months imprisonment, in case II the man was sentenced to one year. According to the Swedish Tort Liability Act chap. 2 sec. 3, a victim of a crime consisting of a serious offence against someone’s person, freedom, peace or honour has a right to tort compensation for aggravated damages. The two girls sued the men for an amount equivalent to € 8,000. This amount is in accordance with the standardized tables used by courts when awarding the conventional sum for non-pecuniary damages concerning the crime “rape”. This conventional sum is used when compensating crime victims of “traditional rape” in the Penal Code chap. 6, sec. 1 (i.e. the kind of rape consisting in assault or other forms of violence).
36
As was mentioned, neither crime was judged as “rape against a child”; instead, the men were convicted for “undue sexual exploitation of a child”. The Court nevertheless stated that the sharpened view on sex crimes against children
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should have an impact on the right to tort compensation. Therefore, even if the girls did not obtain the sums they had sued for, the sums were higher than previous court practice regarding undue sexual exploitation.
38
In case I – where the girl and the man had been in love for a while and had planned the occasion – the girl was awarded compensation equivalent to € 2,500.
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In case II – where the girl and the man had sexual intercourse after a party night – the girl received compensation of an amount equivalent to € 5,000. In this case, the District Court had convicted the man for “rape against a child”; the girl was then awarded compensation equivalent to € 8,000. The Court of Appeal lowered the amount to € 5,000; the reason given by the Court was that a more nuanced judgment should be made since this kind of “rape” does not consist of violence, etc. The nuanced judging therefore had to take into consideration the actual circumstances of the case. The Court of Appeal stated that this sum was higher than in previous cases where children had had intercourse without being forced by violence. As was mentioned, the Supreme Court did not label the crime as rape, but as undue sexual exploitation. Nevertheless, the Court did not reduce the tort compensation sum from the judgment of the Court of Appeal. The Supreme Court expressed that the sharpened view on sex crimes against children in criminal law should also have an impact on the compensation. c) Commentary
40
The really exciting tort issue was never put to the test. Suppose the Supreme Court – such as in the lower instances – had labelled the offence as “rape against a child” in the case of the 14-year-old girl. Would the compensation of the offence then be on the standardized level of “rape” (i.e. the “traditional” rape consisting of threat and violence), which was the assertion of the District Court, but not that of the Court of Appeal? The issue can be formulated as a question as to what degree of influence penal law – and the labelling – has on the assessment of compensation according to tort law.
41
From the above-cited phrasing, it is possible to read that a sharpened view within penal law should have an impact on the issue of compensation for aggravated damages due to a criminal offence. The merits of the case do not, however, prescribe a mechanical parallel between penal law labels and tort law assertion of compensation. Of significance for the interpretation is that penal law focuses on the offender and his criminal act, whereas tort law regards the perspectives of both the tortfeasor and the victim. In reference to compensation, tort law can, moreover, even stronger be discussed from the perspective of the damage sufferer. The compensation for a violation presumes a committed crime, but this is where the immediate connection to penal law ceases; compensation is not a civil parallel to a penalty, which is why there is no mechanical grading in line with the penalty. So-called punitive damages in order to deter or emphasize repudiation, do not occur under Swedish law.
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The occurrence – therefore also the absence – of violence, threats, etc. could mean that different crimes subordinated under the category of rape are differently valued in reference to tort compensation. With reference to the assessment of tort law as to what damage the violation included, it is in principle merely the actual act’s violating circumstances – not their linguistic labelling, i.e. label under penal law – which are essential. Although the choice of a uniformly understood wording as a label of different crime descriptions obviously would simplify labelling, the legal reasoning must be able to reconstruct the path – including all of its circumstances – whereas the legal differentiations will be included in the narrative.
42
It is thereby the fact of experiencing sexual intercourse before one’s fifteenth birthday that is the actual fact which the violation refers to. This factual situation includes the components that lead to the intercourse, but in neither of the two cases is it mentioned that any violence, threat or exploitation of the state of mind of the girls occurred, which is why the relevant violation lies in the experience of having engaged in sexual activities at such an early age. This does not seem to be a more severe experience per se if this act, due to the definition of the rule, could be labelled by this or that word. However, the generally sharpened view toward sexual relations with youths could very well motivate an elevation of the standardized amounts. It is not possible, however, to read from the judgment a parallel so that all of the crime descriptions, which currently are labelled “rape”, should always mean equal damage and compensation amounts. A discussion of relativity could then show that a girl or woman who is brutally assaulted and by violence and threats forced to engage in intercourse thus would be granted a “lower” compensation if she were “only” granted an amount equal to that awarded to a girl who, a month before her fifteenth birthday, without violence or threat, is seduced to have intercourse.
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At this point, the theme of differentiation enters the arena of legal discourse. No matter how one twists and turns this issue, the otherwise worst violated victims of rape – and the assaulted, wounded, paralyzed, etc. – will perceive it as if they relatively are receiving “lower” or even “decreased” compensation in comparison with those who are less violated. Even if all sufferers are always sufferers – this is a tautology, therefore always true – the lawyer has to make such differentiated differentiations in a differentiated way so that different cases are differently assessed (the repetitive phrasing is intended) … and thereby equal cases are equally assessed.
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DISCRIMINATION COMPENSATION 4. Supreme Court, Högsta domstolen, 28 March 2006, [2006] NJA, 170: Discrimination Compensation (I) – Differentiated View on Burden of Proof and Level of Tort Compensation a) Brief Summary of the Facts
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In Sweden, an Anti-Discrimination Act has been implemented concerning gender, ethnicity, religious belief, functional limitation and sexual disposition. The Act applies to both authorities and, in certain cases, private subjects, namely regarding provision of commodities and services. If violations of the law occur, the discriminator has to pay tort compensation to the victim.
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In this case, two lesbian women visited a restaurant together. They embraced and kissed each other. The restaurant owner told them to stop kissing, and a dispute started, which resulted in the owner telling the women to leave the restaurant. One of the women and the Ombudsman of discrimination due to sexual disposition (abbr. HomO) sued the restaurant owner. The women said that they had kissed each other for about half a minute; the restaurant owner claimed that he considered the kissing as intense and as “making out”. He said that he always asks guests who are disturbing the order on his premises to leave. b) Judgment of the Court
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According to § 21 of the Anti-Discrimination Act, the plaintiff has to show circumstances which make it likely that he or she has been discriminated against. If so, the defendant has to demonstrate that no discrimination has occurred. So when the plaintiff has demonstrated circumstances that make discrimination likely, the burden of proof transcends to the defendant. The Supreme Court described § 21 as a rule of divided burden of proof. The Court referred to the discussion in the literature, that these kinds of rules should be applied as proof presumptions. “What kind of circumstances which are presumed are to be decided in every single case”.
48
In this case, the rejection of the restaurant guests was seen as in direct connection to the hugging and kissing between the two guests of the same sex. The Court stated that people are not usually thrown out of restaurants if they are showing endearment to each other. Against that background, the Court found that HomO had revealed such circumstances, which made it likely that the plaintiff was exposed to discrimination due to her homosexual disposition. Given this situation, the burden of proof was handed over to the restaurant owner to prove that no discrimination had occurred, i.e. that there were other reasons behind the request to the women to stop kissing. The Court paid attention to the fact that it had not been asserted that guests were normally asked to leave the premises due to hugging and kissing. Moreover, since the Court of Appeal had found that the restaurant owner had not succeeded in accounting for how these two women’s behaviour had differed from other guests showing
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each other affection, the Court found that the defendant had not been able to demonstrate that the provisions had not involved discrimination. Regarding the compensation sum, the Court did not follow the pleading of HomO (who claimed an amount equivalent to € 13,000). The Court stated that the Anti-Discrimination Act covers “immensely differentiated situations” and therefore the compensation amount has to be “highly varied depending on the nature and magnitude of the offence and other circumstances in the individual case”. The plaintiff had for certain been overtly turned away, but the Court estimated that the provisions “had not brought about any lasting practical effects”. The Court compared the amount claimed by Homo (€ 13,000) to the nonpecuniary tort compensation for victims of a murder attempt (€ 11,000) and rape (€ 8,000). Even though the discrimination compensation overall should be higher than in comparable situations of tort compensation due to criminal offences, the amounts should not deviate too much from those sums. The Court therefore found that an amount equivalent to € 1,500 was appropriate.
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c) Commentary
From the rule of burden of proof under § 21 Anti-Discrimination Act, a division can be performed in (1) objective occurrence of certain circumstances (which the plaintiff must prove) and (2) a subjective component, ”motive”, meaning that the (1)-circumstance gives reason to adopt discriminatory grounds, whereas the defendant must show that no discrimination has occurred.
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The behaviour of the women before as well as at the confrontation with the restaurant owner is included in the objective description of the (1)-circumstances, which must be proved by the plaintiff. The position of the defendant to the actual ground for discrimination – and its connection to the defendant’s view in reference to the women’s behaviour on the occasion when these circumstances were played out – belongs, however, to the (2) subjective sphere of motive; in order to make the motives of conduct clear (and credible), the restaurant owner was required to present his general view on issues of order, acceptable behaviour by guests, etc.
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However, in order to claim in a reliable way that (1) the women’s behaviour was of a certain qualified inappropriate character, it is unconditionally required to present (2) the motives in a detailed manner. Thus, the defendant must partly (1) specify the behavioural pattern in the description of facts, and partly (2) specify how the own neutral legal basis of the order exactly was shaped.
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The Supreme Court emphasized the (1) “direct connection” between the shown sexual orientation by the plaintiff and the subsequent conduct by the restaurant owner; this consequently led to (2) reason to presume discrimination. Regarding the counter evidence in reference to the subjective motive, the restaurant owner failed to show “objectively acceptable reasons”. The case shows that a defendant who cannot make his reasons of behaviour credible from his presented grounds of motive will lose a discrimination case. However, if credible
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as well as general – and per se not discriminatory – motives and credible application of them are demonstrated in the actual situation, the judgment also shows that someone accused of discrimination has an opportunity to clear himself.
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Regarding the assessment of compensation sums, see below no. 61–63. 5. Supreme Court, Högsta domstolen, 21 December 2006, [2006] NJA, 683: Discrimination Compensation (II) – Differentiated Legal Evaluation of “Positive” and “Negative” Special Treatment a) Brief Summary of the Facts
55
The law faculty at a university earmarked 10% of the seats at the yearly admission to students whose parents were born abroad. The reason was that the university wanted to increase the social diversity in the law study programme. Two applicants whose parents were Swedish sued the university for compensation due to violation of the Anti-Discrimination Act; both students had better study credentials and would have been admitted to the programme if the ethnic affirmative action had not taken place. b) Judgment of the Court
56
The Supreme Court emphasized that an exception from an important main rule – i.e. the rule of non-discrimination – should be clearly stated in the code and applied with restriction. In the specific Act of Equal Treatment at Universities, there is an exception from the discrimination prohibition in § 7 when “the treatment is justified with regard to a particular interest which obviously is more important than to prevent discrimination”. The Court found that this provision did not permit “strong special treatment”, i.e. affirmative action when those refused admission have better qualifications. Although the preparatory work for the Higher Education Ordinance opened up the way for some affirmative action, those examples were connected to the applicant’s prior knowledge and real competence. The Court found that those statements in the preparatory works were not marked by such distinctness that should have been desired; anyhow, the examples did not indicate that ethnical attributes could be seen as objective circumstances in this case of admission. Therefore, the two Swedish girls had been discriminated against. Both plaintiffs were awarded a non-pecuniary compensation amount equivalent to € 8,000. c) Commentary
57
Perhaps it will soon be possible to coin the notion, “Special Tort Law”, i.e. with reference to action-guiding – and opinion-making – legal framework in several areas, to which finally a rule of tort compensation is attached. This civil tort rule means that a diversified field of societal rulings will have to meet the special environment of tort law, including its theory and practice. It will then show that it is one thing to stipulate various straightforward directives of conduct, but another to apply further considerations of tort law, such as nuances, distinctions and so forth to these regulations, i.e. the theme of differentiation will occur again.
Sweden
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The legally argumentative path could – beyond the previously (supra no. 50– 53) mentioned two steps (1) objective action and (2) subjective motive – also introduce a third step. Disregarding (1) an objectively discriminatory treatment and (2) a discriminatory motive, the disadvantageous treatment could be considered as (3) legitimized. When legally legitimizing the conduct it is not sufficient to present grounds in general, or merely to claim various “good” intentions. You have to be legally correct, not just politically correct. In the AntiDiscrimination Act, when adopting the (3) legitimizing exceptions from the prohibition of discrimination, two different methods (a)–(b) are being utilized, and the case shows that these methods cannot randomly be mixed:
58
(a) Positive discrimination (or affirmative action). The intention is here to discriminate in order to reach a result, which in the long term promotes the rejection of the actual ground for discrimination (i.e. to discriminate individuals from group A in order to promote individuals from group B).
59
(b) Particular interest, which obviously is more important than to prevent discrimination. The intention here is not to discriminate; instead, the discrimination becomes the unavoidable result of promoting a more important objective. The actual rule in this case belongs to this category. Unlike (a) positive discrimination, the particular superior interest according to (b) is not to be identifiable with the regulated ground of discrimination. On the contrary, the claimed interest should be “more important than the interest to prevent discrimination”, whereas the conclusion should be drawn that there is an interest, other than those based on ethnicity, religious belief, functional limitation or sexual disposition, that can legitimate the conduct. Thus, the case shows that when using a rule of the (b)-kind, some interest other than promoting persons of a certain ethnicity is necessary.
60
Regarding the amount of compensation in the two cases [2006] NJA, 170 and [2006] NJA, 683, some guidelines can be evaluated concerning the range and discourse patterns:
61
In its judgment [2006] NJA, 170, the Supreme Court stated that the Anti-Discrimination Act includes “immensely differentiated situations” and that the amount of the compensation must be “highly varied depending on the nature and magnitude of the offence and other circumstances in the individual case”. In [2006] NJA, 170 the plaintiff had been ordered to leave a restaurant after she and her girlfriend had been hugging and kissing. A concretizing motivation, which can explain the relatively low compensation of an amount equivalent to € 1,500, was that the Supreme Court asserted that the discriminating act “had not brought about any lasting practical effects”. Since the Supreme Court in this case compared the compensation levels in cases of rape (€ 8,000) and attempted murder (€ 11,000) with the sum claimed by HomO (€ 13,000), the Court found that the compensation should not be far beyond the levels of compensation in cases when it is granted in accordance with tort law in other similar cases, even if the compensation levels generally ought to be on a higher level. Any standardized amounts for the various grounds of discrimination are
62
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Håkan Andersson
thus not to be expected. Instead, the asserted variation means a concretized assignment for the legal system to present the particularities of each case – i.e. differentiations.
63
The “amount-limiting argument” in [2006] NJA, 170 – that the order to leave the restaurant did not have any lasting effects – could in [2006] NJA, 683 be turned to a motive for increasing the amount. From the time aspect of the offence, it is possible to compare the situation of “simply” having one’s evening out ruined with that of losing one semester or two of studies. Beyond the time aspect, it can also be added that an offence can lead to consequences that are more serious if it prevents the sufferer from access to certain privileges, to undertake certain activities or if it otherwise affects the continuing activities in life.
CONCLUDING REMARKS 64
Sometimes – actually quite often – the legal discourse may be viewed as a frisky dance, a circling game that goes round, round and round. The positivistic dancer twists his feet in vain attempts to find the accurate step-by-stepsequence. It cannot be helped – we exist here and now in a time of transition when the legal discourse must weigh multiple views, without always being able to escape back to old patterns of narrative with linear fixed criteria to be marked step-by-step. If one today in a “realistic” manner would want to describe a legal field such as tort law, one would present a “fairer” picture if choosing to illustrate these pluralistic patterns of legitimization than sticking to traditional definitions and unitary criteria.
65
For instance, the development of compensation for shock damage is not very well-illuminated if one would cultivate the ideal with one uniformly defined rule. The criteria would either be too common and vague or too arbitrarily specified in a way that could block the legal development. Thus, instead of the linear narrative that marks the established criteria in a certain order, it is in this article suggested that the determining issues, i.e. parameters (P1)–(P5), rather be thematized. It is thereby possible to admit openly that the path of the discourse may go in circles and that a specific case’s arguments may constitute a combination where different high and low values on the parameters could give the situation a legitimatizing structure. Also the cases of non-pecuniary damage due to sex crimes or discrimination illustrate that legal argumentation follows a multi-layered way of combining and differentiating a set of open requirements.
66
Around and around the legal arguments – or the legal “discourse” – circle. Plurality and dynamic flexibility seem to characterize the tort law argumentation of our “post-modern” time – and its development. The session could be a liberating secession from tradition – or why not a genuine jam session. Within a flexible pluralistic discussion of issues, simplified attempts of rules and definitions may seem as drawing the surface instead of the deep, the moss instead of the stone. Moreover, as everyone knows: A rolling stone gathers no moss!
Sweden
473
D. LITERATURE 1. Festschrift to Dufwa. Essays on Tort, Insurance, Law and Society in Honour of Bill W. Dufwa (Jure Förlag, Stockholm 2006) The well-known and renowned Swedish scholar Professor Bill Dufwa was awarded with a Festschrift with nearly 80 contributions from his many friends and colleagues all over the world. It is a monumental work of nearly 1,300 pages consisting of articles reflecting Dufwa’s main legal interests – that is tort and insurance law as well as general legal and societal issues. The articles are written in many different languages (English is most common, about 20% are written in Scandinavian languages) with summaries in English. The work contains a most valuable collection of interesting issues and stimulating texts; therefore the work can be said to have fulfilled its purpose – to give a welldeserved act of honour to Bill Dufwa.
67
2. Articles In Svensk Juristtidning (SvJT), 553–588, Professor Iain Cameron published an article on tort law compensation and the European Convention on Human Rights (“Skadestånd och Europakonventionen för de mänskliga rättigheterna”). Various articles concerning new cases from the Supreme Court were published in Juridisk tidskrift (JT) and the author of this Yearbook article wrote articles about all new tort and insurance law cases at the website-Journal www. pointlex.se.
68
XXIV. Switzerland Peter Loser
A. LEGISLATION 1. New Translation of the Swiss Civil Code and the Swiss Code of Obligations
1
It seems justified to point out at the beginning of this section the new translations of the Swiss Code of Obligations including the Law of Torts and the first part of the Swiss Civil Code on the Law of Persons as well as the Introduction to Swiss Private Law.1 These translations as well as others have been published in 2004 through 2006 in cooperation with the Swiss-American Chamber of Commerce. 2. Insurance Contracts: Draft General Revision of the Statute on Insurance Contracts
2
After several announcements in earlier reports, the draft concerning a general revision of the Statute on Insurance Contracts was finally published in July 2006.2
3
The Statute on Insurance Contracts currently in effect dates from 1908.3 During the past decade, though, there have been some changes in regulation of the private insurance industry in Switzerland. Initially, insurance supervision was regulated by a new statute (Versicherungsaufsichtsgesetz VAG)4, aiming to establish an integral supervisory authority for banks, insurance companies and other financial intermediaries as well (Eidgenössische Finanzmarktauf-
1
2
3 4
Swiss-American Chamber of Commerce, Swiss Civil Code, Law of Persons (Verlag Schulthess AG, Zürich 2006); Swiss-American Chamber of Commerce, Swiss Code of Obligations, Vol. I and II (Verlag Schulthess AG, Zürich 2005). For further information see A. Schnyder/S. Weber (eds.), Totalrevision VVG – Ein Wurf für die nächsten 100 Jahre? (2006) and the critical report by E. Holliger-Hagmann, Grossbaustelle Versicherungsvertragsrecht, in: Jusletter (http:\www.weblaw.ch) vom 13. November 2006. Bundesgesetz vom 2. April 1908 über den Versicherungsvertrag, SR 221.229.1. Bundesgesetz vom 17. Dezember 2004 betreffend die Aufsicht über Versicherungsunternehmen, SR 961.01.
Switzerland
475
sicht FINMA)5. Then the most urgent postulates were implemented by a partial revision of the Statute on Insurance Contracts (Versicherungsvertragsgesetz VVG), in effect now since 2006 as is the new regulation on insurance supervision.6 In 2003 a commission of experts concerning the general revision of the Statute on Insurance Contracts under the direction of Prof. Dr. Anton K. Schnyder (University of Basel) was eventually introduced, presenting its draft on a revised Statute in July 2006.7 As a next step, a draft including a report will be prepared within the Federal Administration, expected to be open for political parties and further interest groups for public consultation by the end of 2007 (Vernehmlassung). Not until then will the Swiss Federal Government (Federal Council, Bundesrat) prepare and submit to parliament a final draft. It is thus uncertain whether a new Statute will be available by the year 2010 (Statute on Insurance Contracts in effect for 100 years). Even though the draft now available only represents an intermediate step on the way to the definite Statute, it is well worth discussing at this time a few propositions from the new reform project. These are vital issues expected to give rise to discussion in the academic and political discourse now following in Switzerland. In this respect, one needs to realize that certain rules concerning insurance contracts now in effect considerably favour insurance companies. This has resulted in “bad habits” in the commercial world for which the insurance industry in part has earned criticism. The experts’ draft thus now intends to strengthen the insurants’ protection and to create a balance of forces between suppliers and consumers without the provision becoming non-feasible in practice and impeding the supply of insurance products.
4
i) First, the revised extent of protection deserves to be mentioned. The draft refrains from a general distinction between consumers and other insurants. In fact, as a general rule also small and medium sized businesses are included in the scope of subjects meriting protection.
5
ii) The field of insurance agents will be regulated more strictly. Today, it is common in this business for agents that they are compensated for their efforts to acquire new clients and new contracts not by their clients but by insurance companies. This situation, however, creates a latent conflict of interest. As a novelty, it shall be prohibited from acting as an insurance agent and at the same time as an insurance broker. There will only be agents linked to an insurance company, procuring sales of insurance policies, and insurance brokers committed to an insurant, providing advice when buying insurance policies. In short, this means that in the future an agent must be compensated for his services according to the rules of the Code of Obligations governing the mandate, i.e. by his client exclusively and under no circumstances by an insurance company.
6
5
6
7
Botschaft vom 1. Februar 2006 zum Bundesgesetz über die Eidgenössische Finanzmarktaufsicht (Finanzmarktaufsichtsgesetz, FINMAG), Schweizerisches Bundesblatt (BBl) 2006, 2829. Compare the Swiss Report in the Yearbook 2005: P. Loser, Switzerland, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2005 (2006) no. 5 ff. The draft in German, including a comprehensive and explanatory report, may be viewed at: http:\www.efd.admin.ch (Dokumentation/Zahlen und Fakten/Berichte).
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Peter Loser
As such, a ban on so-called “kick backs” (retrocessions; Retrozessionen) is emerging within the insurance industry. However, the new jurisdiction considerably constricts such kick backs in the asset management industry as well.8
7
iii) As yet, Swiss law has been lacking an actual material control (Inhaltskontrolle) of general terms and conditions of trade by courts. Due to political pressure, though, the Swiss Government has been issuing regulations for the insurance industry concerning improper general terms of contract via insurance supervision since 2005.9 The draft aims to eliminate this competitive disadvantage of the insurance industry and proposes a general provision concerning material control of general terms and conditions within the Swiss Code of Obligations (Obligationenrecht, OR). Such provision might well become the most discussed issue within the whole revision.
8
iv) It is proposed that all insurants (not just consumers in a strict sense) have a right to revoke the insurance contract within 14 days. This proposition will face broad criticism from trade associations during public consultation. The fact that the Swiss Government (Federal Council, Bundesrat) at the end of 2005 overruled a general right to revoke in electronic commerce also needs to be considered in this regard.
9
v) The pre-contractual duties of insurance companies concerning correct information will be tightened in favour of insurants. At the same time, the sanctions for a breach of the insurant’s obligation to disclose (Anzeigepflicht) a hazard (Gefahr) are weakened by introducing the prerequisite of causality. The insurance company in such a case is allowed to terminate a contract only if it has misjudged the risk due to an incorrect disclosure and, based on a correct assessment of the risk, would not have concluded the contract at all or would have concluded a contract of different content only. 3. Rules on Tort Law in the New Statute on Genetic Examination of Humans
10
On 1 July 2006, the Federal Statute on Genetic Examination of Humans came into effect.10 The Swiss legislative views the widespread use of gene technology in the field of tort law as irreconcilable with the dignity of man. Art. 29 of the new Statute thus, when calculating an injury, prohibits any genetic examination for the purpose of defining the onset of a disease before any clinical symptoms are showing. Not until after the physical outbreak of the disease is such examination – with the consent of the patient – permitted.
8 9
10
Compare infra (Cases) no. 28 ff. Verordnung vom 9. November 2005 über die Beaufsichtigung der privaten Versicherungsunternehmen, SR 961.011. Bundesgesetz vom 8. Oktober 2004 über genetische Untersuchungen beim Menschen (GUMG), SR 812.12. Compare W. Fellmann, Genetische Untersuchungen und Haftpflichtrecht, Haftpflicht und Versicherung (HAVE) 2006, 9 ff.
Switzerland
477
4. Auditors’ Liability: Draft Revision of the Swiss Company Law Within the revision of Swiss Company Law,11 a limitation of the very expansive Swiss auditors’ liability has been proposed. Upper limits of liability (CHF 10 and 25 million/€ 6.6 and 16.6 million) in cases of slight fault, as is the case in Germany and Austria, have been suggested.12 In the course of public consultation (Vernehmlassung), though, it became clear that such pre-determined limits will hardly be supported by the majority of the political parties in parliament. However, the belief remains that the problem of excessive liability law suits against auditing companies needs to be solved. As a next step, the Swiss Federal Government (Federal Council, Bundesrat) will prepare and submit to the parliament another draft by the end of 2007.
11
5. Draft Revision of Swiss Tort Law – Influence on the General Revision of the Turkish Code of Obligations While the general revision on Swiss tort law is still pending due to the Swiss government’s (Federal Council, Bundesrat) decision, the experts’ draft has indeed attracted attention elsewhere.
12
80 years ago, Turkey had largely incorporated the Swiss Code of Obligations then in effect. Currently, a revision of the law of obligations is in progress in Turkey, with the objective to replace the entire code with a newly structured and linguistically completely revised statute.13 In this process, again Swiss law seems to have had a considerable impact. In regard to the regulations on noncontractual tort law, the reform committee has been greatly inspired by the Swiss preliminary draft on the revision of tort law – as well as by the Principles of European Tort Law.14
13
In particular, liability of the enterprise and a general clause on strict liability are intended to be introduced, following the example of the Swiss preliminary draft. In contrast to the Swiss preliminary draft, the Turkish draft refrains from partially integrating contractual liability into liability for tort as well as from shaping negligence as a concept based on subjective criteria of the person held liable.
14
Furthermore, a liability clause in the draft Turkish Commercial Code is equally of interest. For groups of companies a form of liability based on reliance (Ver-
15
11
12
13
14
The draft in German and French (as well as an overview in English) including a comprehensive and explanatory report may be viewed at: http:\www.ofj.admin.ch (topics/economy/legislation/ corporate governance). Compare H.C. von der Crone, Haftung und Haftungsbeschränkung in der aktienrechtlichen Verantwortlichkeit, Schweizerische Zeitschrift für Wirtschafts- und Finanzmarktrecht (SZW) 2006, 2 ff.; W. Doralt, Haftungsbegrenzung für die Revisionsstelle – Notwendigkeit oder Privileg? SZW 2006, 168 ff. The draft in Turkish has been published on the website of the Department of Justice: http:// www.kgm.adalet.gov.tr/borclarkanunu.htm. A German translation of the rules on Tort Law (Art. 49–75) has been published in HAVE 2006, 338 ff. Compare the report of E. Büyüksagis, Die Haftung aus unerlaubter Handlung im Entwurf eines neuen türkischen Obligationenrechts, HAVE 2006, 330 ff.
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Peter Loser
trauenshaftung) is planned which, compared to the practice of Swiss courts, however, is very extensive.15 Art. 209 of the draft states: “Where the reputation of the group has reached such a level that it creates trust in the public or consumers, the mother company is liable for the trust raised by the use of such reputation.”
B. CASES 1. Schweizerisches Bundesgericht (Swiss Federal Court), 20 December 2005, Bundesgerichtsentscheid (Decision of the Federal Court, BGE) 132/2005 III 359:16 An Unplanned Child Constituting Loss?
16
This case was already presented in the Yearbook 2005.17 In this leading case, the Swiss Federal Court for the first time had decided the legally and ethically controversial question whether the parent’s legal obligation to secure the child’s subsistence, triggered into effect by birth, can be seen as a loss. The Court approved the civil action.
17
Here, it remains to be pointed out that the decision has provoked a lively academic discussion. Particularly, the series of essays in the journal Haftpflicht und Versicherung (HAVE), also containing contributions on French, German and Austrian law, has to be mentioned.18 2. Schweizerisches Bundesgericht, 28 August 2006, BGE 132/2006 III 715:19 Proof of Causality Concerning Liability for False Information in the Prospectus on the Capital Market a) Brief Summary of the Facts
18
On 25 November 1999, a company of the New IT Market, Miracle Holding AG, was introduced to the stock exchange. Up to that point, the company had consistently been showing a loss. However, the most important product, a type of software, was predicted a promising future. The offering price of the shares amounted to CHF 240 (€ 160). Within the first four months after the initial public offering, their rate rose to CHF 1,100 (€ 735). Afterwards, it dropped drastically, and by the end of 2000, the shares were practically worthless. A and B had purchased shares at a high rate at the end of 1999, which they were only able to sell at a considerable loss in 2000. They claimed compensation from the members of the board of directors of Miracle Holding AG.
15 16 17 18 19
For the concept of liability based on reliance in Swiss law see the references infra no. 41 ff. Also at: http://www.bger.ch/jurisdiction-recht. Compare the Swiss Report in the Yearbook 2005: Loser (fn. 6) no. 9 ff. Forum – Kind als Schaden, HAVE 2006, 368 ff. Also at: http://www.bger.ch/jurisdiction-recht. Cf. C. Chammartin/H.C. von der Crone, SZW 2006, 452 ff.
Switzerland
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b) Judgment of the Court
The Federal Court did not answer the question of whether the information on the company given in the underwriting prospectus was misleading or incomplete. The proceedings were limited to the question of causality.
19
The Federal Court, in accordance with legal science, differentiates between direct and indirect causality. There is a case of direct causality if the investor read the prospectus and purchased the titles based directly on the information in the prospectus. In this case, also indirect causality is sufficient. This is the case if the investor did not read the prospectus, but based his decision on a general mood on the market to invest, resulting from the information given in the prospectus.
20
According to the Federal Court, in both cases there is no reversal of the burden of proof. On the contrary, the claimant has to prove that the false information in the prospectus was the cause of his decision to make an investment. However, the claimant does not need to provide strict proof. It is sufficient that the probability of the claimed causal chain is predominant. In addition, in regard to the primary market (purchase of titles directly from company), the Court may apply common experience and thus assume that the information contained in the prospectus was a direct cause of the decision to buy titles. This facilitation, though, is not applicable if the investor purchased his shares on the secondary market (purchase from existing shareholders).
21
In the present case, the Court concluded that the prerequisites for direct as well as for indirect causality were not fulfilled in regard to either A or B. The optimistic mood on the market to invest as well as the steep rise of the rate were not triggered by the information given in the prospectus but by other factors such as the faith in the future of the new IT market as a whole, general readiness to assume risks and speculation.
22
c) Commentary
The Federal Court has argued against a reversal of the burden of proof in regard to causality of fault in the prospectus. In return, it has accepted other facilitations of proof. On the one hand, a court may partially make assumptions concerning the causal chain based on common experience of life. On the other hand, the degree of proof in regard to complex causal chains may be reduced to predominant causality.
23
Similar facilitations of proof have also been granted by the Federal Court in regard to liability of physicians. In particular, a pre-determined reversal of the burden of proof concerning the correlation of medical malpractice and the loss occurred, as in part exists in other countries (e.g. Germany), is rejected in particular.20
24
20
Cf. Schweizerisches Bundesgericht (Swiss Federal Court), 23 November 2004, Bundesgerichtsentscheid (Decision of the Federal Court, BGE) 4C.378/1999 (also at: http://www.bger. ch/jurisdiction-recht); Schweizerisches Bundesgericht, 29 July 1994, BGE 120/1994 II 248.
480
25
Peter Loser
In general, it may be concluded that, in regard to the degree of proof of causality, only predominant probability is required now. The Federal Court has decided to apply this principle in product liability also.21 The injured person does not have to prove the cause of fault. Instead he only needs to prove that the appliance has been operated correctly and that the safety instructions have been followed. Very seldom strict proof may be required for this. Thus, predominant probability is sufficient. The manufacturer may then attempt to prove that the version told by the injured person is not credible. 3. Schweizerisches Bundesgericht, 11 April 2006, BGE 132/2006 II 305:22 No Compensation for Farmers for Losses Related to “Mad Cow Disease” a) Brief Summary of the Facts
26
In 1997, 2,206 farmers sued Switzerland for payment of CHF 300 (€ 200) million in damages. They accused the authorities of not having taken the necessary measures against the spread of the so-called “mad cow disease” (“scrapie”, “Creutzfeldt-Jakob”). The Government, in the farmers’ eyes, therefore was partly responsible for their losses due to the collapse in prices for beef. b) Judgment of the Court
27
In contrast to the court of first instance, the Federal Court dismissed the claim. The Court first stated that the judgment of the reproaches must be based on the state of knowledge at the time of the outbreak of the disease. Furthermore, it need not be asked if the best possible measure had been taken in each and every case and at the ideal point in time. For if so, the authorities would always expose themselves to the risk of being accused of taking action too quickly or too hesitantly. In particular, no reproach could be made against the authorities that they should have prohibited the import of carcass meal from the UK or other countries of the EU at an earlier time. 4. Schweizerisches Bundesgericht, 22 March 2006, BGE 132/2006 III 460:23 Liability of Banks/“Kick Backs” to Independent (and External) Asset Managers a) Brief Summary of the Facts
28
T. was employed by a bank and in this position managed the assets of trust S. domiciled in Vaduz/FL. After some time, T. went into business himself. He continued to manage the assets for his own account and placed the funds of 21
22 23
Cf. Schweizerisches Bundesgericht, 19 December 2006, BGE 4C.298/2006 (also at: http:// www.bger.ch/jurisdiction-recht). Also at: http://www.bger.ch/jurisdiction-recht. Also at: http://www.bger.ch/jurisdiction-recht. Compare S. Emmenegger, Anlagekosten: Retrozessionen im Lichte der bundesgerichtlichen Rechtsprechung, in: S. Emmenegger (ed.), Anlagerecht (2007) 59 ff.; S. Abegglen, „Retrozession“ ist nicht gleich „Retrozession“, SZW 2007, 122 ff.; P. Hsu, Retrozessionen, Provisionen und Finder’s Fees, Bibliothek zur Zeitschrift für Schweizerisches Recht (ZSR), Vol. 45 (2006).
Switzerland
481
trust S. (over CHF 100 million, € 61 million) with several different banks. T. had concluded so-called “retro-agreements” with these banks. Based on these agreements, he received so-called “kick backs” of an agreed amount for every transaction with the trust funds. Additionally, for replacement of the assets with another bank, he received finder’s fees, another kind of kick back. After the trust had become aware of these payments, it sued T. for delivery of the kick backs as well as the finder’s fees. b) Judgment of the Court
In contrast to both courts of lower instance, the Federal Court ruled the asset manager, based on his mandate, to be liable to disclose and deliver all the kick backs and finder’s fees to trust S. as his client for a contractual waiver within a mandate is only valid if the client has been comprehensively informed and has explicitly declared a waiver to the kick backs.
29
c) Commentary
The judgment has attracted much attention in the Swiss finance industry as well as in surrounding countries,24 even though legal science has been pointing out the legal situation for some time. In this regard, it needs to be mentioned that roughly 80% of independent (external) asset managers do not forward the “kick backs” to their clients. Thus, with a reimbursement of 0.5% per year and managed funds of CHF 500 (€ 333) billion, a total sum of CHF 2.5 (€ 1.6) billion in kick backs per year results.
30
Primarily, the judgment is of importance for the contractual relations between asset manager and client. But it also has effects on a possible liability of banks. Liability may become a possibility particularly if the bank has failed to inform the client of the kick backs paid to the independent (external) asset manager and the latter has executed economically unnecessary transactions. Liability may also be considered if the asset management mandate has been performed correctly but the bank was aware of the asset manager not forwarding the kick backs and the latter then becomes insolvent later on.
31
The damage subject to compensation in this case does not necessarily include only the kick backs paid to the asset manager. For, if the client subsequently rescinds the entire asset management agreement – as well as the escrow agreement with the bank – on the grounds that he would not have concluded the contract had he been aware of the additional payments, the bank, during bad years on the stock market, possibly might have to compensate the assets’ loss in value as a whole to bring the client into the position he was in previously.25
32
24
25
Legal restrictions of inducements and “kick backs” will be applicable in European countries according to Article 19 Section 1 of the Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments (MIFID) and to Article 26 of the Directive 2006/73/EC of 10 August 2006 implementing Directive 2004/39/EC. In Germany the European restrictions are adopted in the new article 31d of the Wertpapierhandelsgesetz (WpHG). The mentioned European and German rules will enter into force on 1 November 2007. German courts have already passed such judgments. Compare the decision of the German Supreme Court (BGH) No. XI ZR 73/05 from 9 October 2006.
482
33
Peter Loser
Apart from the consequences in tort law, the actors in the finance industry are also worried because their common practice in the past now might bear penal consequences as well. Paying kick backs contrary to contractual duty under certain circumstances may constitute (active) bribery (Bestechung) of a mandatary. Since 2006 such behaviour constitutes a crime in Switzerland, as has been the case for a long time in many other countries. 5. Handelsgericht des Kantons Zürich (Commercial Court of the Canton Zurich), 24 January 2006, Blätter für Zürcherische Rechtsprechung (Court Decisions of the Canton Zurich, ZR) 105/2006 No. 23: Liability Insurance Does Not Cover Contractual Claims for Performance a) Brief Summary of the Facts
34
A bank had taken out an insurance policy to cover risks stemming from professional liability. Within the term of insurance, one of the bank’s employees executed an incorrect currency transaction for one of its clients (purchase of € 50 million instead of the sale of € 50 million). As a consequence, the bank balanced the client’s account. However, due to the trend in quotations, a loss of roughly CHF 10 (€ 6.6) million had resulted for the bank. The bank thus claimed this loss from the insurance, which denied the claim. b) Judgment of the Court
35
The Court first stated that the bank indeed had not compensated the client for a loss but had retroactively performed the contract correctly by amending the transaction. However, expenses in order to perform contracts are not covered by insurance. This was not an obligation of which the time of occurrence was uncertain, but the performance of a contract to which the bank had committed itself. Therefore, the bank’s action against the insurance company was dismissed. c) Commentary
36
In legal science, the exclusion of contractual claims for performance from insurance policies is often known as entrepreneurial risk (Unternehmerrisiko). In addition to primary claims for performance, this term also includes the secondary claim for compensation due to non-performance.26 Such a secondary claim is substituted for the primary claim as a virtual performance surrogate (Erfüllungssurrogat). However, the decision of the Commercial Court is not precise in this point. In practice, though, this question is usually dealt with in the general terms and conditions of the insurance contract.
26
Compare M. Lazopoulos, Vertragliche Erfüllungsansprüche sind von der Haftpflichtversicherung nicht gedeckt (Unternehmerrisiko), SZW 2006, 461 ff.; M. Lazopoulos, Unternehmerrisiko und Betriebshaftpflichtversicherung, HAVE 2006, 107 ff.
Switzerland
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C. LITERATURE 1. Stephan Weber (ed.), Personen-Schaden-Forum 2006 and PersonenSchaden-Forum 2007 (Translated: Forum on Personal Injury) Organised by HAVE, Verein Haftung und Versicherung (Verlag Schulthess AG, Zürich 2006 and 2007) The book contains the papers read at two further conventions on questions regarding personal injury. It covers the issue not only from the perspective of tort law but also of the law of private and social insurance.
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In the convention transcript of 2006, Werner Ott and Michel Bögli examine legal aspects concerning the medical opinion. Atilay Ileri and Urs Karlen portray practical problems of settling losses outside of the court. Ueli Kieser and Peter Beck show the latest trends in social security law and Elena Bargelli illustrates the development in Italian law concerning “danno biologico”, a kind of loss created by the courts and situated between material and immaterial loss.
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At the beginning of the convention transcript of 2007, more recent theories and practical questions concerning household loss are discussed (Christa Kissling, Andreas Sidler, Jacqueline Schön-Bühlmann and Marc Schätzle). Swiss law allows the judge to apply great discretion in regard to reducing benefits of liability and other insurances, described by Stephan Weber, Stephan Fuhrer and Rico Heinz. Furthermore, the reduction of benefits in social security law is discussed (Erwin Murer, Hardy Landolt and Peter Beck). The convention transcript closes with an overview of foreign and domestic developments (Volker Pribnow and Bernhard Koch).
39
2. Stephan Weber/Marc Schätzle/Rico Heinz/Andreas Ochsner, Leonardo 05 – Compterprogramm zur Berechnung von Personenschäden (Translated: PC Software for the Calculation of Personal Injury) (Verlag Schulthess AG, Zürich 2005) Leonardo 05 is a computer programme used for calculating personal injuries in liability and social security law. It combines calculation of injury with capitalisation and thus replaces the complex calculations by hand using the charts of Stauffer and Schätzle. For practitioners, the pricey sum of CHF 4,500 (€ 3,000) may thus pay off.
40
3. Peter Loser, Die Vertrauenshaftung im schweizerischen Schuldrecht – Vor dem Hintergrund europäischer Rechtsentwicklung (Translated: Liability Based on Reliance in Swiss Law of Obligations – Against the Background of European Legal Developments) (Verlag Stämpfli AG, Bern 2006) The work (publication at the University of Basel to acquire professorial status; Habilitationsschrift) deals extensively with the legal concept of liability based on reliance, evolved from liability based on culpa in contrahendo and dis-
41
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cussed in Swiss jurisdiction and legal science for roughly the past ten years.27 The author analyzes constellations in different cases for common denominators, classifies them by different areas of interests and thus achieves a system of congruent values of liability based on reliance which is also very useful for practical application.
42
In addition to essential areas of liability, also controversial issues such as expert’s liability, liability in e-commerce, liability within groups of companies as well as protective effects for the benefit of third parties are treated. Due to the economy’s internationalization, the necessity, basic principles, and the different forms and manifestations of liability based on reliance are examined against the background of European legal developments.
43
The comprehensive book (approx. 900 pages) contains numerous summaries of single chapters as well as an overall summary in German and English. 4. Christa Kissling, Dogmatische Begründung des Haushaltschadens (Translated: Dogmatic Justification of Household Loss) (Verlag Stämpfli AG, Bern 2006)
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Even though jurisdiction is evolving coherently, household loss continues to figure among the issues discussed controversially.28 Kissling has processed the basic principles and theories concerning household loss. She has received an award from the Swiss Society for Liability and Insurance Law (Schweizerische Gesellschaft für Haftpflicht- und Versicherungsrecht) for her comprehensive work. 5. Muriel Vautier Eigenmann, La responsabilité civile pour la certification de produits et d’entreprises en droit suisse (Translated: Liability for Product and Enterprise Certification in Swiss Law) (Verlag Schulthess AG, Zürich 2005)
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Today, products and enterprises are frequently assessed by independent organizations in order to increase the trust of customers. However, certification also leaves some legal questions unanswered as these organizations have not entered into a contractual relation with the customers. Vautier Eigenmann’s work examines the liability these organizations are faced with.
27
28
For a general overview of the concept of a liability based on reliance see the Swiss Report in the Yearbook 2002: P. Loser, Switzerland, in: H. Koziol/B.C. Steininger (eds.) European Tort Law 2002 (2003) no. 32 ff.; for recent literature compare also the overview in the Swiss Report in the Yearbook 2005: Loser (fn. 6) no. 43 ff.; and S. Emmenegger, Haftungsbeschränkung und Haftungsausschluss im Vertrauenskontext, Zeitschrift des Bernischen Juristenvereins (ZBJV) 2006, 537 ff.; U. Sommer, Vertrauenshaftung, Anstoss zur Neukonzeption des Haftpflicht- und Obligationenrechts? Aktuelle Juristische Praxis (AJP) 2006, 1031 ff. See also the book of A. Sidler, Personenschäden bei unbezahlter Arbeit (2006), revolving around issues of calculation of household loss.
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6. Thierry Luterbacher, Die Schadenminderungspflicht (Translated: Duty to Mitigate Loss) (Verlag Schulthess AG, Zürich 2005) Luterbacher’s dissertation deals with the duty to mitigate loss in regard to liability in company law. The author, on the one hand, illustrates the basic principles of liability of executive organs of public companies. On the other hand, he calls for a new concept for the duty of the injured to mitigate his loss in a case of liability. This duty, according to Luterbacher, is not part of determining the compensation after the calculation of the loss but a question of causality. The duty to mitigate loss therefore needs to be integrated into the calculation of the loss itself.
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7. Susan Emmenegger (ed.), Bankhaftungsrecht (Translated: Liability of Banks) (Verlag Staempfli AG, Bern 2006) The book examines selected aspects of liability of various actors in the financial market. Especially the article of Martin Hess on liability of banks for theft of client data as well as Vito Roberto’s contribution on contractual liability of banks as loan creditors need to be pointed out. Also of particular interest is Peter Gauch’s article on contractual liability of banks, critically examining the waiver of liability by a bank’s general terms and conditions.29 As a consequence of this article, which has attracted interest in the Swiss banking community, several banks are currently planning to revise their general terms and conditions.
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8. Winterthur Versicherungen (ed.), Haftpflicht des Rechtsanwalts (Translated: Liability of Lawyers) (Dike Verlag AG, Zürich/St. Gallen 2006) The volume contains the papers delivered at a convention on liability of lawyers in September 2006. The subject of examination was liability in regard to various professional activities of a lawyer, particularly as an executive organ of a company (Rolf Watter and Sabina Nüesch) and in regard to trusts (Oliver Arter). Special consideration was given to the fact that, according to Swiss law, lawyers are now allowed to organize themselves in the form of a public company (Walter Fellmann). Thierry Luterbacher addresses questions concerning insurance coverage.
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9. Peter Forstmoser (in Cooperation with Thomas Sprecher/Gian Andri Töndury), Persönliche Haftung nach Schweizer Aktienrecht – Personal Liability Under Swiss Corporate Law (Verlag Schulthess AG, Zürich 2005) This bilingual work (German with English translation) gives a good overview of personal liability of executives in a public company. In addition to the board of members and the management, this group of people also includes auditing bodies as well as consultants in regard to issuing shares or bonds. The book 29
See also P. Gauch, Die Vertragshaftung der Banken und ihre AVB, Zeitschrift für juristische Ausbildung und Praxis – recht 2006, 77 ff.
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is very practical and incorporates the complete previous jurisdiction of the Federal Court. 10. Roland Schaer, Modernes Versicherungsrecht (Translated: Modern Insurance Law) (Verlag Staempfli AG, Bern 2007)
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The work describes private insurance law30 in its historical, social and dogmatic importance today and shows intersections with social security law as well as liability law. The author structures the description of legal questions concerning the insurance relationship in chronological order: Insurance relationships “before”, “during” and “after” the occurrence of the event insured against.
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Schaer’s book brings a welcome expansion of literature in insurance law. It now figures alongside the comprehensive classic by Alfred Maurer (Schweizerisches Privatversicherungsrecht, 3rd ed., Verlag Staempfli AG, Bern 1995) and the shorter, clear illustration by Moritz Kuhn/R. Luka Müller-Studer/ Martin K. Eckert (Privatversicherungsrecht, 2nd ed., Verlag Schulthess AG, Zürich 2002). 11. Rolf H. Weber/Patrick Umbach, Versicherungsaufsichtsrecht (Translated: Insurance Supervision Law) (Verlag Staempfli AG, Bern 2006)
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Since 2006, a modern frame regulating supervision of the private insurance industry in Switzerland has existed.31 Swiss legal doctrine so far has hardly recognized the law of insurance supervision. In Weber/Umbach’s book, this legal field is now illustrated within a comprehensive yet clear structure.
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For the revision of the Swiss Insurance Law, see supra no. 2 ff.; as well as the anthology Schnyder/Weber (fn. 2). Compare the Swiss Report in the Yearbook 2005: Loser (fn. 6) no. 5 ff.; and J. Waldmeier et al. (eds.), Aktuelle Entwicklungen im schweizerischen Versicherungsaufsichtsrecht (2005).
XXV. European Union Bernhard A. Koch
A. LEGISLATION AND LEGISLATIVE PROJECTS 1. Product Liability On 14 September 2006, the Commission published its third report on the Product Liability Directive (PLD).1 In astonishing contrast to the previous report,2 the Commission announced “that the Directive works by and large in a satisfactory way and that there is no need for amendments at present”3. This suggests that all problems observed in 2001 have miraculously been resolved, which is quite suprising, particularly in light of the ECJ rulings rendered ever since which alone seem to speak a different language.
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As if nothing had happened, problems like the widespread discontent with the € 500 minimum damage requirement for property losses are now pushed aside – at least the Commission concedes that it is still a “point of concern”, though without admitting any need to even consider action.4
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2. Conflict of Laws The proposed regulation on the law applicable to non-contractual obligations (“Rome II”)5 presented earlier in this series could still not be brought to a successful end. In its first reading in July 2005, the European Parliament had proposed a series of 54 (!) amendments,6 which were in part accepted, in part 1
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3 4 5
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Third report on the application of Council Directive on the approximation of laws, regulations and administrative provisions of the Member States concerning liability for defective products (85/374/EEC of 25 July 1985, OJ L 210, 7.8.1985, 29–33, amended by Directive 1999/34/EC of the European Parliament and of the Council of 10 May 1999), COM(2006) 496 final (in the following: 3rd report). See B.A. Koch, European Union, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2001 (2002) 473 (no. 1 ff.) on the preceding (second) report. 3rd report (fn. 1) 4. 3rd report (fn. 1) 8. COM(2003) 427 final, 22.7.2003. See B.A. Koch, European Union, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2003 (2004) 435 (no. 1–17). European Parliament legislative resolution on the proposal for a regulation of the European Parliament and of the Council on the law applicable to non-contractual obligations (“Rome II”), OJ C 157E, 6.7.2006, 370.
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refused by the Commission in February 2006.7 In September 2006, the Council adopted a Common Position8. The European Parliament concluded its second reading in January 2007, still proposing 26 amendments.9
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The developments in 2006 were marked primarily by Parliament’s proposal to introduce a specific conflicts rule on damages for personal injury (only!) suffered by victims of traffic accidents (only!). Parliament suggested to split the treatment of a single accident case into establishing liability on the one hand (to which the general rule of the lex loci delicti should continue to apply) and determining the quantum of damages on the other (which should be governed by the lex domicilii10 of the victim instead). Desperate efforts by scholars11 to convince those responsible for this bizarre proposal of the manifold problems such a violation of all imaginable standards of private international law would bring about seem to have had at least some positive effect, as this strange idea was formally dropped in the second reading, though not entirely: In a proposed new article, Parliament now wants the planned regulation to underline that judges should consider the standards of the victim’s habitual residence when quantifying damages for personal injuries (even if not caused by a traffic accident). Again, however, the drafters blatantly disregard the core of private international law, as the wording of the new draft would lead to a rule of substantive law rather than deal with conflicts of laws, which is what the whole regulation should be about: By requiring that “the court seised shall apply the principle of restitutio in integrum”, Parliament’s draft would effectively interfere with the law of damages of the Member States rather than their conflicts rules only. If that is what is really intended by the MEPs, they should stop abusing the Rome II draft for that purpose and strive for a harmonization of substantive tort law instead.
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Parliament’s unawareness of private international law problems is further underlined by its proposal to eliminate special rules on product liability and on environmental liability, on which it continues to insist in the second reading. While it may indeed be necessary to define “environmental damage” for the purposes of the regulation, it remains unclear why Parliament believes that there is no need for a special rule for such cases.
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The key representatives of the European Parliament in this matter had initially vowed to insist on Amendment 53 of their first report, which provided that 7
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Amended Proposal for a European Parliament and Council Regulation on the Law Applicable to Non-Contractual Obligations (“Rome II”), COM(2006) 83 final, 21.2.2006. Common Position (EC) No 22/2006, 25.9.2006, OJ C 289/3, 28.11.2006, 68. See http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-20070006+0+DOC+XML+V0//EN. The proposal was marketed with a reference to the “lex patriae”, but since the connecting factor should not be the nationality of the victim but his domicile, it was simply a misnomer – the least error by the proponents of that rule. See, e.g., A. Staudinger, Internationale Verkehrsunfälle und die geplante „Rom II“-Verordnung, ERA Forum 2005, 483; Th. Thiede/K. Ludwichowska, Zeitschrift für vergleichende Rechtswissenschaft (ZvglRwiss) 2007, 92.
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the Rome II regulation shall take precedence over the 1971 Hague Convention on the Law Applicable to Traffic Accidents “if all the other elements of the situation at the time when the loss is sustained are located in one or more Member States”. Initially, the Commission had followed this laudable proposal in its Amended Proposal of February 2006.12 Council, however, insisted on the initial solution in its Common Position.13 Parliament seems to have given in by no longer insisting on its original proposal, though it proposes to delete the entire Article dealing with other international conventions without further explanation. What can only be supported, however, are Parliament’s efforts to reintroduce a rule on privacy and personality rights as foreseen by Art. 6 of the original draft, even though the proposed wording certainly needs some refinement, be it by going back to the initial text proposed in the original draft. There is no explanation other than subservience to the media and its lobbyists for the fact that neither the Commission nor the Council dare to keep such a rule in the planned regulation. For this reason only, it may indeed be necessary to proceed with the conciliation process on the Rome II draft that will most likely be started in mid-2007.
7
B. CASES 1. ECJ 10 January 2006 – C-402/03 Skov Æg v. Bilka Lavprisvarehus A/S [2006] ECR I-199 a) Brief Summary of the Facts
Plaintiffs Mikkelsen and Due Nilsen had fallen ill with salmonella poisoning after eating eggs sold to them by Bilka and produced by Skov Æg. According to Danish court practice already before product liability legislation, also the supplier could be held liable without fault for the defects of a product he distributed, though retaining a right of recourse against the producer. This practice was introduced into the Danish statute implementing the PLD. Accordingly, Bilka was held liable by the Aalborg District Court despite the plaintiff’s knowledge of the egg producer’s identity, who was joined in the proceedings by Bilka. Skov Æg was ordered to reimburse Bilka for the damages paid out to the plaintiffs.
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On appeal by the defendants, the Court of Appeal for Western Denmark (Vestre Landsret) asked the ECJ for a preliminary ruling on the question whether
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12 13
See fn. 7 (new Art. 24, p. 22 of the proposal). See fn. 8. The relevant part of the text as amended by the Council would reduce the Commission proposal to conventions concluded between Member States only: “However, this Regulation shall, as between Member States, take precedence over conventions concluded exclusively between two or more of them insofar as such conventions concern matters governed by this Regulation.” (Art. 28 par. 2 of the regulation as numbered by the Common Position).
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the PLD precludes a national provision such as the Danish rule applied in the instant case, according to which the supplier is a primary defendant in a suit based upon the implementing statute, in contrast to Art. 3 of the Directive, which primarily looks at the producer and importer of a product (par. 1 and 2) and foresees no-fault liability of the supplier only if the former cannot be identified (par. 3). b) Judgment of the Court
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The Court affirmed “that the margin of discretion available to the Member States to make provision for product liability is entirely determined by the Directive itself” (par. 22)14. While the Danish government had tried to argue that the PLD only governs the liability of the producer while leaving the supplier’s liability open to the Member States to regulate, the Court rejected this by claiming that the Directive was the result of balancing these two options, so that its choice to focus on the producer primarily was at the same time a decision to keep the importer in second and other distributors in third line. Leaving that choice to the victim would increase product costs since all operators on the supply chain would have to insure against the risk of being sued.
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The Danish government further tried to support its position by reasoning that its current law extended liability to the supplier only inasmuch as the producer would be liable as well, and by encouraging the supplier to seek recourse from the producer, the supplier’s position were “similar to that of a surety with joint and several liability” (par. 35). The Court insisted that it was exactly this “multiplicity of actions … what … the Directive is intended to avoid” (par. 36).
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The Court therefore held that the PLD precludes national rules which hold the supplier liable without fault for the defects of a product unless the exception of Art. 3 par. 3 of the Directive is given, which is the case if neither producer nor importer can be identified. However, national law may still provide for other bases of a compensation claim against the supplier, for example on the basis of the sales contract, or if the supplier is answerable for fault within his sphere (par. 47–48). c) Commentary
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In its continued crusade against any deviations from the words of the PLD, the ECJ cemented (and narrowed) its rules even further, this time in express contradiction to the drafters’ intention.15 14
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See already the earlier decisions in cases González Sánchez v. Medicina Asturiana (C-183/00, [2002] ECR I-3901), Commission v. France (C-52/00, [2002] ECR I-3827) and Commission v. Greece (C-154/00, [2002] ECR I-3879), all discussed at B.A. Koch, European Union, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2002 (2003) 432 (no. 56 ff.). The Danish government had quoted the minutes of the 1025th Council of Ministers meeting of 25 July 1985 as follows: “With regard to the interpretation of Articles [3] and [13], the Council and the Commission are in agreement that there is nothing to prevent individual Member States from laying down in their national legislation rules regarding liability for intermediaries, since intermediary liability is not covered by the Directive. There is further agreement that under the Directive the Member States may determine rules on the final mutual apportionment of liability
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While it can hardly be disputed that the Directive intended to grant victims of a product defect a direct claim against its producer, it is not equally clear whether those along the chain of distribution should be let off the hook entirely as long as the producer can be (and is) identified. In essence, it comes down to the question who shall bear the risk of the producer’s insolvency – the innocent victim or those who derive profits from dealing with the products. This matter is not so much of a problem for the buyer or other potential victims that are protected by contractual duties of the seller, but rather for the innocent bystander who can only sue the producer (or importer).
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However, one can argue that the Directive made that choice specifically in order to narrow the scope of liability: While the ultimate seller of a product may have to indemnify victims who are within the protective scope of the sales contract on other bases (in particular on contractual ones), an option which is expressly upheld by the Court, providing for cover against claims by innocent bystanders would indeed place an unexpected burden upon the retail seller which would require additional insurance or other cover that in turn may increase the ultimate price to be paid by the consumer.
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The outcome of this case is therefore not as outrageous as other rulings of the Court have been in the past. One may debate whether the risk of the producer’s insolvency should rest upon the ultimate victim, but in light of alternative paths to compensation for the consumer this has to be narrowed down to cases involving innocent bystanders, and there the choice made by the Court is at least arguable.
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2. ECJ 9 February 2006 – C-127/04 Declan O’Byrne v. Sanofi Pasteur MSD Ltd et al. [2006] ECR I-1313 a) Brief Summary of the Facts
The claimant had suffered severe brain damage after a vaccination in November 1992. He claims that the vaccine was defective. It had been produced by defendant APSA, who had it distributed in the UK by its wholly-owned subsidiary APMSD.16 The latter had received the vaccine consignment in September 1992 and sold it sometime thereafter to the Department of Health.
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In November 2000, a first action was filed by the claimant against APMSD. In October 2002, the claimant lodged a second action against APSA, alleging that he had not realized until the summer of that year that it was APSA and not APMSD who had produced the vaccine.
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According to Art. 11 PLD, claims “shall be extinguished upon the expiry of a period of 10 years from the date on which the producer put into circulation the
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among several liable producers (see Article 3) and intermediaries.” (par. 17). The Court rejected this text as irrelevant. The company names had changed; the acronyms are those used by the Court.
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actual product which caused the damage, unless the injured person has in the meantime instituted proceedings against the producer”. The key question for the claimant therefore was whether the vaccine was already “put into circulation” upon delivery to APMSD despite the fact that this was but a distribution subsidiary of the actual producer. If so, the (second) action against the latter would have been time-barred.
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The High Court of Justice not only referred this question to the ECJ for a preliminary ruling, but further asked whether it were permissible for a national court to substitute the real producer for APMSD as a defendant in the first action, which was filed within the ten year period after September 1992, though (at least initially) only against the latter. b) Judgment of the Court
21
The Court first conceded that “the Directive does not define the concept of ‘put into circulation’” (par. 23). It went on to argue that a product meets this requirement as soon as “it leaves the production process operated by the producer and enters a marketing process in the form in which it is offered to the public …” (par. 27). Control over the participants along the chain of distribution is therefore not so much decisive as is proximity to the actual manufacturing process (par. 29).
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As to the second question concerning the change of defendants in the first action, the Court essentially pointed at national law, which shall “determine the conditions in accordance with which one party may be substituted for another” as long as “due regard is had to the personal scope of Directive 85/374, as established by Articles 1 and 3 thereof”. c) Commentary
23
The Court was not bold enough, however, to declare that “circulation” is not started as long as the product remains within the producer’s sphere. This is indeed what Advocate General Geelhoed had suggested. He had argued “that a product is put into circulation from the moment at which it is transferred by a person or company over whom the producer exercises effective control to a person or company over whom the producer does not exercise such control” (par. 67), which would have shifted the key date from September 1992 to the time APMSD had turned the vaccine over to the Department of Health. He had argued “that a producer should not be able to manipulate the length of the liability period by way of its internal organisation” (par. 42). Theoretically, a producer could indeed deliver the entire bulk of his daily production to a subsidiary warehouse company immediately upon manufacturing, which would then trigger the ten year period foreseen by Art. 11, irrespective of the fact when the products enter the market beyond the producer’s sphere of control.
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The ECJ was not convinced entirely, however, and resorted to a ruling which leaves the door open to further discussion (which is not exactly what the referring court had wanted to achieve). It seems, however, that products shuffled
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around within a company group are “put into circulation” as soon as they are packaged and wrapped up in a form which is no longer changed from then onwards until they finally leave the company group. Distributors are therefore to be considered as separate entities within the meaning of Art. 11 even if they are wholly owned by the manufacturer. Despite the fact that a product has never left the sphere controlled by the manufacturer, it is nevertheless “put into circulation” once it is taken over by a mere distributor within his company group. It is to be expected that manufacturing companies have learned their lesson and from now on declare their on-site factory warehouse a separate legal entity.
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3. ECJ 14 March 2006 – C-177/04 Commission v. French Republic [2006] ECR I-2461 a) Brief Summary of the Facts
As reported in an earlier volume of this series, the ECJ in 2002 declared that France had incorrectly transposed the Product Liability Directive by not including the lower threshold of € 500, by holding the supplier liable on the same basis as the producer, and by reducing the scope of the defences foreseen by Art. 7 lit. (d) and (e) of the Directive.17
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In 2004, France thereafter introduced the € 500 threshold for property damage by referring to a newly-enacted decree (which contains said lower limit)18 in the amended wording of Art. 1386-2 Code civil, and equally expanded the scope of the defences to the original meaning of Art. 7 of the Directive as interpreted by the ECJ in its 2002 judgment. The Commission nevertheless insisted that France had still not complied with that ruling with respect to Art. 3 par. 3 of the Directive. Admittedly, France had in the meantime changed the wording of Art. 1386-7 Code civil, which until then had held the supplier liable “on the same basis as the producer”,19 by adding that this shall only be the case “if the latter is unknown”. However, this still did not exclude the supplier’s liability where he has informed the injured person of the name of his own supplier (which need not necessarily be the original producer).
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b) Judgment of the Court
It was clear from the plain text of Art. 1386-7 Code civil as amended in 2004 that French law still deviated from the product liability model foreseen by the Directive inasmuch as it continued to hold the supplier liable even if he had 17
18
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C-52/00, Commission v. French Republic [2002] ECR I-3827. On this case, see Koch (fn. 14) 432 (no. 62 ff.). Décret No 2005–113 pris pour l’application de l’article 1386-2 du code civil, of 11 February 2005, JO (Journal Officiel) of 12 February 2005, 2408. The original wording of this provision was until 2005: “Le vendeur, le loueur, à l’exception du crédit-bailleur ou du loueur assimilable au crédit-bailleur, ou tout autre fournisseur professionnel est responsable du défaut de sécurité du produit dans les mêmes conditions que le producteur.” See also supra no. 8 ff. on the Danish salmonella case, where a similar problem was at stake.
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named his predecessor in the chain of distribution. Therefore, it was obvious that France would be held liable for failure to comply with ECJ judgment C-52/00. The Court ordered France to pay a € 31,650 penalty for each day (!) of delay in taking the necessary measures until full compliance with the earlier ruling. This fine was almost triple the amount that the Commission had asked for, explained by the Court by its own discretion to determine the penalty, and by reference to a different method of calculating the duration of the infringement. c) Commentary
29
Unfortunately, but in light of the penalty not surprisingly, France has given in also with respect to the last point of criticism still at stake in this case. Art. 1386-7 was amended on 5 April 200620 in order to fully comply with Art. 3 par. 3 of the Directive.21 4. ECJ 18 May 2006 – C-343/04 Land Oberösterreich v. ČEZ a.s. [2006] ECR I-4557 a) Brief Summary of the Facts
30
Acting in its capacity as the owner of real property at the Austrian border to the Czech Republic, the province of Upper Austria (Oberösterreich) sued the Czech operator of a nuclear power plant in Temelín, which is situated within 60 km of the concerned land on Czech territory, for an injunction. Upper Austria claimed that the operation of the nuclear power plant constitutes a nuisance within the meaning of § 364 par. 2 ABGB (Austrian Civil Code), which entitles the owner of the affected land to enjoin those in charge of the source of the nuisance from continuing with emissions that can “significantly interfere” with the use of the property as common under the local circumstances,22 unless the interference is caused by an officially authorised installation, in which case the landowner could only claim compensation for the damage caused (§ 364a ABGB). Since §§ 364 and 364a ABGB are part of Austrian real property law, Upper Austria relied upon Art. 16 par. 1 of the Brussels Convention (which at the time was still applicable), which gives exclusive jurisdiction for cases concerning “rights in rem in immovable property” to the courts where the affected land is situated.23 The case was therefore brought before an Austrian court of first instance. 20 21
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Loi nº 2006–406 of 5 April 2006, JO of 6 April 2006. The wording of its first sentence now is: “Si le producteur ne peut être identifié, le vendeur, le loueur, à l’exception du crédit-bailleur ou du loueur assimilable au crédit-bailleur, ou tout autre fournisseur professionnel, est responsable du défaut de sécurité du produit, dans les mêmes conditions que le producteur, à moins qu’il ne désigne son propre fournisseur ou le producteur, dans un délai de trois mois à compter de la date à laquelle la demande de la victime lui a été notifiée.” This provision reads: “The owner of land can prohibit his neighbour from producing influences, emanating from the latter’s land, by effluent, smoke, gases, heat, odours, noise, vibration and the like, in so far as they exceed normal local levels and significantly interfere with the usual use of the land. Direct transmission, without a specific legal right, is unlawful in all circumstances.” The relevant part of Art. 16 reads: “The following courts shall have exclusive jurisdiction, regardless of domicile: (1) (a) in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Contracting State in which the property is situated …”.
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The lower court denied jurisdiction, however, as argued by the defendant, who had claimed inter alia that the current action did not concern “rights in rem” but is rather “compensatory in nature”, which would shift the case within the domain of Art. 5 par. 3 of the Brussels Convention.24 The decision of the court of first instance was overturned by the appellate court. Upon further appeal, the Austrian Supreme Court (OGH) decided to stay proceedings and to ask the ECJ for a preliminary ruling on the question whether an action for an injunction based upon the law of neighbourhood as pending in the instant case falls under Art. 5 par. 3 or Art. 16 par. 1 of the Brussels Convention respectively.
31
b) Judgment of the Court
The Court started its line of reasoning by claiming that the definition of what constitutes a “right in rem in immovable property” must be given irrespective of national law in order to ensure an equal and uniform application of the Brussels Convention. The ECJ pointed to the common understanding that it is the court of the place where land is situated which can best handle matters relating to rights in rem in such immovable property, since such matters “require checks, inquiries and expert assessments which have to be carried out on the spot” (par. 29). This is held to justify Art. 16’s deviation from the general rule of Art. 4 Brussels Convention, which links jurisdiction to the defendant’s domicile. While the ECJ then proceeds to argue that Art. 16 applies to “actions which seek to … provide the holders of those rights with protection for the powers which attach to their interest” (par. 30), the Court concludes that “an action, possibly preventive, for cessation of a nuisance” does not fall under that category and is therefore outside the scope of Art. 16 Brussels Convention, as the action brought by Upper Austria is deemed comparable to claims aimed at protecting any other given right or interest (par. 34).
32
33
c) Commentary
While the case in its core only concerns the Brussels Convention, the ruling equally extends to the Brussels I Regulation of 200125 with which it was replaced.26 The wordings of Art. 5 par. 3 of both the Convention and the Regulation are almost identical,27 as are Art. 16 par. 1 of the Convention and Art. 22 par. 1 of the Regulation. More importantly, also actions for an injunction based 24
25
26
27
The relevant part of Art. 5 reads: “A person domiciled in a Contracting State may in another Contracting State be sued: … (3) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred …”. Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2001] OJ L 12, 16.1.2002, 1–23. Denmark was not bound by the Regulation for lack of participation in Title IV of the EC Treaty, but has agreed to effectively apply the regime of the Regulation as it stands subject to certain exceptions and reservations. See the Agreement between the European Community and the Kingdom of Denmark on jurisdiction, recognition and enforcement of judgments in civil and commercial matters, [2005] OJ L 299/62. Art. 5 par. 3 of the Regulation gives jurisdiction to the courts “for the place where the harmful event occurred or may occur”.
34
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upon the law of nuisance are likely to fall under the planned Rome II Regulation28 in light of this ruling irrespective of the fact how such claims are categorized by the respective jurisdiction, which may consider them to be within the ambit of property rather than tort law.
35
Why an action for an injunction should not provide holders of real property interests in land with protection for such interests as the ECJ claims remains mysterious, however. The Court tries to explain this by alleging that “the real and immovable nature of that right is, in this context, of only marginal significance” (par. 34), which is at least surprising in light of the peculiar features of the law of neighbourhood. If the ECJ is serious with its claim that there is no difference between an action for protection against nuisance and one against interference with physical integrity or a personal right (par. 34), the scope of Art. 16 Brussels Convention must necessarily be reduced to nil.
36
Even though the Court accepts the fact that § 364 par. 2 ABGB requires an examination of the local conditions and circumstances in order to determine whether the interference is excessive, it refuses to acknowledge that it is only the locality of the affected land and not of the source of the emission which counts in this respect. It may indeed appear difficult for the Court to grasp that Art. 16 applies “even where the distance between the two properties concerned will potentially submit them to usual local conditions which are different” (par. 37), but this difficulty does not result from the law but from the Court’s failure to assess it properly.
37
It is particularly surprising that the Court points at its judgment in Mines de potasse d’Alsace29, where it had expanded the scope of Art. 5 Brussels Convention to both the place where the event giving rise to the damage and to the place where it occurred, which would at least not exclude jurisdiction of the Austrian courts in the instant case if applied analogously.30
38
This is also what Advocate General Poiares Maduro had argued when taking the opposite view and speaking in favour of applying Art. 16 par. 1 Brussels Convention to the action at hand.31 In an exceptionally well-written opinion, which is recommended for reading to anyone who has already given up hope that the ECJ will ever consider national legal traditions again, the Advocate General claims that the Brussels Convention, “in light of its purpose of allocating jurisdiction, has to respect the institutional choices, even if imperfect, made by legal systems, at the domestic level, on how to regulate in substance 28 29
30
31
See supra no. 3 ff. Case 21/76, Handelskwekerij G.J. Bier B.V. and others v. Mines de Potasse d’Alsace SA. [1976] ECR 1735. In light of the limited question to be answered by the ECJ it remains unclear whether it would follow the reasoning of the defendant in the instant case that Upper Austria’s claim was “compensatory in nature” and therefore within the ambit of Art. 5 par. 3 Brussels Convention instead, which would speak in favour of Austrian jurisdiction (as the place where the harm sought to be prevented may occur) in light of Mines de potasse d’Alsace. Opinion of the Advocate General, par. 86.
European Union
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the protection of immovable property. Bringing all remedies arising from property law and actions for damages under the umbrella of matters relating to tort under Article 5(3) of the Convention would constitute an interference with such choices” (par. 58), which must be avoided. 5. ECJ 13 June 2006 – C-173/03 Traghetti del Mediterraneo SpA, in Liquidation v. Repubblica Italiana [2006] ECR I-5177 a) Brief Summary of the Facts
Initially, this was a state aid case involving ferries between the Italian mainland and the isles of Sicily and Sardegna. Traghetti del Mediterraneo (TDM) had claimed that the low fares of its competitor Tirrenia di Navigazione, which ultimately drove them out of business, were only made possible by unlawful subsidies of the Italian state. TDM therefore sued Tirrenia for compensation, but unsuccessfully so from the first to the last instance: The Corte Suprema di Cassazione in Rome essentially denied that the state aid undisputedly granted to Tirrenia had been unlawful in light of the special economic situation of the area at the time. The Supreme Court also failed to see any other grounds for holding Tirrenia liable.
39
While this first case had originally been filed in Napoli, the administrator of TDM (in the meantime already in liquidation) tried his luck again in the North, this time before the courts of Genova, and running this time against the Italian state. The claim for compensation was now based upon the argument that the Italian Supreme Court had erred in interpreting the Community rules on competition, and that its denial of submitting the earlier case to the ECJ for a preliminary ruling as requested by the plaintiff constituted a breach of Art. 234 par. 3 EC.
40
Since Italian statutory law precluded actions for compensation based on the allegation that a court had erred in interpreting the law, the Genova court asked the ECJ for a ruling on the question whether such state law limits were in accordance with Community law, particularly in light of the Köbler judgment of the ECJ32, which was handed down just at the time the Genova court was dealing with the present matter.
41
b) Judgment of the Court
The Court repeated the basic considerations underlying its Köbler ruling and first pointed to its holding that Member States have to indemnify individuals who have been harmed by a breach of Community law committed by whichever authority. The “full effectiveness of the Community rules conferring such rights would be brought into question” if individuals were precluded from compensation if it was a court adjudicating in last instance which had infringed 32
C-224/01, Köbler v. Austria [2003] ECR I-10239. On this case, see Koch (fn. 5) 435 (no. 41 ff.).
42
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Bernhard A. Koch
upon their rights. However, in light of the peculiar function of the courts, only “manifest” violations of Community law trigger state liability, which depends upon such factors as “the degree of clarity and precision of the rule infringed, whether the infringement was intentional, whether the error of law was excusable or inexcusable, the position taken, where applicable, by a Community institution and non-compliance by the court in question with its obligation to make a reference for a preliminary ruling” (par. 32, 43). State law must not impose stricter limits to liability for court errors.
43
The ECJ therefore held that “Community law precludes national legislation which excludes State liability, in a general manner, for damage caused to individuals by an infringement of Community law attributable to a court adjudicating at last instance by reason of the fact that the infringement in question results from an interpretation of provisions of law or an assessment of facts or evidence carried out by that court.” National legislation is equally precluded “which limits such liability solely to cases of intentional fault and serious misconduct on the part of the court, if such a limitation were to lead to exclusion of the liability of the Member State concerned in other cases where a manifest infringement of the applicable law was committed”. c) Commentary
44
The Court’s ruling in this case is but a logical follow-up to its Köbler ruling. Any other outcome would have overruled that earlier case. It is hard to imagine how the laws of the Member States could ever converge if the national courts were entirely exempt from control by the Luxembourg court, even though it may be a hard pill to swallow for those who see the independence of the national judiciary as one last stronghold of subsidiarity.
XXVI. Comparative Remarks Ken Oliphant
A. INTRODUCTION It is a great honour to be the first common lawyer to be asked to write the Yearbook comparative report. The task has taken me on a stimulating and exceptionally enjoyable voyage of intellectual discovery through the tort law developments of no fewer than 24 national legal systems, plus the supranational regime of the EU. To draw meaningful comparisons is no easy task, and demands an analytical framework within which like can be compared with like and contrasts highlighted. Thankfully, I have not had to develop such a framework on my own, from a starting-point of nothing, but have been able to adopt that already elaborated by the European Group on Tort Law, taking the form of its Principles of European Tort Law.1 This provides a means of expressing concepts from national systems from a neutral perspective, not tied to any particular national frame of analysis. My remarks have also been informed by numerous other works that are representative of the burgeoning scholarship in the field of European Tort Law.
1
B. THE STATE OF EUROPEAN TORT LAW SCHOLARSHIP It is no exaggeration to say that this “new scholarly discipline”2 has been, for more than a decade now, the single most important intellectual endeavour relating to the law of tortious liability across the jurisdictions of the EU and other European countries. The collaborating entities that produce this Yearbook – the European Centre of Tort and Insurance Law (ECTIL) and the Research Unit for European Tort Law (ETL) – have already made an immense contribution to the field, but they are far from being alone, and it would be wrong not to acknowledge the most valuable work on European Tort Law being done else1 2
European Group on Tort Law, Principles of European Tort Law: Text and Commentary (2005). See K. Oliphant, The Nature of Tortious Liability, in: K. Oliphant (ed.), The Law of Tort (2nd ed. 2007) § 1.38.
2
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where.3 After all, this is a collaborative, not a competitive endeavour, and all engaged in it can benefit from dialogues with each other. 1. New ECTIL/ETL Publications
3
For the first time in a Yearbook comparative report, it has been possible to rely on an instalment of the new Digest of European Tort Law, an ongoing project under the editorial supervision of the Research Unit for European Tort Law.4 It is an extraordinarily useful resource. Volume 1 is titled Essential Cases on Natural Causation and contains summaries and analyses of court decisions in 26 modern European legal systems (including decisions of the ECJ), organised by topic, with supplementary reports from historical and comparative perspectives. I need hardly say that the title echoes the great Digest of Roman Law compiled under the Emperor Justinian. Of course, to a common lawyer, the Digest approach has a comfortingly familiar feel, case analysis being perhaps the defining feature of common law reasoning. But I am confident that this new contribution to European Tort Law scholarship will establish itself as an essential reference for comparative tort lawyers everywhere, in both common law and civil law systems.
4
The first volume of the Digest was published at the start of 2007, and I hope that the reader forgives me for getting slightly ahead of the Yearbook’s chronology; this is a publication that it was simply impossible to ignore. Naturally, the year under review, 2006, also saw important publications by ECTIL/ETL, most notably as the culmination of projects dealing with children in tort law and financial compensation for victims of catastrophes. In both areas, the topicality of the subject matter is amply demonstrated by developments noted in this year’s country reports.
5
We may note, first of all, the two volumes published under the title Children in Tort Law, the first dealing with children as tortfeasors, the second with children as victims.5 Developments in 2006 testify to the study’s timeliness. Issues relating to the tortious liability of children were raised by legislative proposals in the Netherlands and Spain. In the Netherlands, the Christian Democratic Party proposed the extension of parental strict liability for torts committed by their children.6 In Spain, a new single-track procedure was introduced to enable the tortious liability of children to be determined at the same time as their criminal trial.7 Additionally, children as victims were the focus of new legislation in Italy, where a new Act introduced a judicial power to require a parent to pay compensation to a child for breach of a court order relating to custody proceedings.8 Children as victims were also addressed by the legislature in the 3
4
5
6 7 8
In addition to the works cited below, see especially Study Group on a European Civil Code, Principles of European Law: Non-Contractual Liability Arising out of Damage Caused to Another (revised final draft dated November 2006) <www.sgecc.net>. B. Winiger/H. Koziol/B.A. Koch/R. Zimmermann (eds.), Digest of European Tort Law, vol. I: Essential Cases on Natural Causation (2007). M. Martín-Casals (ed.), Children in Tort Law, Part 1: Children as Tortfeasors (2006); M. MartínCasals (ed.), Children in Tort Law, Part II: Children as Victims (2006). M.G. Faure/T. Hartlief, The Netherlands (supra 338), no. 7. A. Ruda, Spain (supra 429), no. 8 ff. E. Bargelli, Italy (supra 299), no. 1 ff.
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Czech Republic, where new provisions deal with the damages recoverable by a school pupil/university student for injury to health. It is specified, for example, that he should be entitled to compensation for loss of earnings from the day he should have completed his education.9 The loss of a student’s earning capacity was also considered by the Supreme Court of Justice in Portugal.10 A second notable ECTIL/ETL project to bear fruit in 2006 addressed compensation issues arising out of natural disasters, terrorism attacks and other catastrophes.11 Here too recent legislative initiatives have been identified by the Yearbook country reporters. In the Netherlands, the report of an official committee suggesting (inter alia) compulsory liability insurance, where possible, and the stimulation of first-party insurance where it is not, has been largely adopted in government proposals.12 In Spain the solution to the particularly-felt issue of terrorism has been the creation of a state compensation fund, which was the subject of various reforms in 2006, with government recognition of the inadequacies of the private insurance market in such cases.13 Another facet of the many-sided problems raised for tort law by catastrophes has been revealed in Portugal, where the legislator has provided for the immunity of health workers and pharmaceutical producers for the administration of specially authorized drugs at time of national emergency.14
6
2. Other Publications on European Tort Law Of publications in 2006 from other sources, European Tort Law by C. van Dam merits a special mention as the first through-written text devoted to its subject matter.15 It is in the main a three-way comparative study – focussing on English, French and German tort law – but it also considers noteworthy laws and decisions from elsewhere in Europe, including EU Law and decisions under the ECHR, plus the development of principles of European law by the European Group and other similar initiatives. I feel obliged to note that I derived very great assistance from the book in composing these remarks.
7
Amongst other books on European Tort Law published in 2006, I would particularly highlight works by three of my fellow Yearbook reporters: Bjarte Askeland,16 Ewa Bagińska17 and Peter Loser.18 One of the joys of reading through the country
8
9 10
11
12 13 14 15 16
17
18
Jiří Hrádek, Czech Republic (supra 123), no. 39. Supreme Court of Justice, 12 October 2006. See A.G. Dias Pereira, Portugal (supra 394), no. 56 ff. M.G. Faure/T. Hartlief (eds.), Financial Compensation for Victims of Catastrophes: A Comparative Legal Approach (2006). M.G. Faure/T. Hartlief, The Netherlands (supra 338), no. 8 f. A. Ruda, Spain (supra 429), no. 1 ff. A.G. Dias Pereira, Portugal (supra 394), no. 20 ff. C. van Dam, European Tort Law (2006). See K. Oliphant, England and Wales (supra 153), no. 45. B. Askeland, Tapsfordeling og regress ved erstatningsoppgjør (Loss allocation and right of recourse in tort law) (2006). See B. Askeland, Norway (supra 361), no. 25 ff. E. Bagińska, Odpowiedzialność odszkodowawcza za wykonywanie władzy publicznej (Tort liability of public authorities) (2006). See E. Bagińska, Poland (supra 373), no. 91 P. Loser, Die Vertrauenshaftung im schweizerischen Schuldrecht: Vor dem Hintergrund europäischer Rechtsentwicklung (Liability based on Reliance in the Swiss Law of Obligations –
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reports in researching this comparative overview was the new evidence they provided of the increasing scholarly contribution being made by members of the Yearbook “family” of (mostly!) young and up-and-coming comparative tort scholars.19 Each of the three works I have mentioned adopts a comparative approach, and the authors are to be congratulated on what appear, from the summaries presented in this volume, to be exceptionally interesting publications. For the time being, however, Norwegian and Polish language skills are necessary for those who would like to be further acquainted with, respectively, the Askeland and Bagińska books. (Loser’s book contains a summary in English.)
C. DEVELOPMENTS OF PARTICULAR INTEREST 9
As has been noted in previous comparative reports, the selection of developments of particular interest for discussion is a somewhat arbitrary matter. It depends, in roughly equal measure, on the fortuitous appearance before appellate courts in different countries of a sufficient number of cases, on sufficiently related issues, to make comparative analysis meaningful, and the predilections of the comparative reporter. What follows is only a personal, and very partial, commentary on European Tort Law developments in 2006. 1. Wrongful Conception, Birth and Life
10
These always controversial issues received judicial attention in a number of European jurisdictions in 2006. There is a growing consensus that claims by the parents of a child born after an unwanted conception should be allowed at least to some extent, though the nature of their damage – and the damages recoverable – is a matter of some dispute. By contrast, claims by the child that he should not have been born, in view of serious disabilities that make life too painful to endure, are almost universally rejected because of the moral repugnancy inherent in passing judgment on the quality of another person’s life. As we shall see, however, there are exceptions. A further claim, not always clearly distinguished from the above, is that for wrongful birth. Here the claim – by the parents – is that they have been caused loss by a child they conceived normally (not as the result of a tort), having subsequently been tortiously prevented from terminating the foetus’s life by abortion. Such cases may be thought to raise exactly the same moral issues about the value of human life as claims for “wrongful life”, but there are a few complexities that we shall explore with reference to recent decisions.
11
We shall first address the matter of wrongful life. Readers of the Yearbook will recall the (in)famous decision of the French Cour de Cassation in the
19
Against the Background of European Legal Developments) (2006). See P. Loser, Switzerland (supra 474), no. 41 ff. See also two other works with Yearbook connections noted by O. Moréteau, France (supra 196), no. 49 and 50. I should also note here a new comparative study published in book form by an ECTIL staff member: C. Kissling, Dogmatische Begründung des Haushaltschadens (Dogmatic Justification of Household Loss) (2006). See P. Loser, Switzerland (supra 474), no. 44.
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arrêt Perruche of 2001, allowing a baby with very serious disabilities to claim compensation for the mere fact of being born.20 The decision was reversed by statute the following year,21 though the controversy has yet to die down fully.22 Since then, the Netherlands has given us the Baby Kelly case of 2005, allowing the child claimant compensation for her full costs of living and not just for expenses attributable to her disabilities.23 This year the select list of courts allowing claims for wrongful life was joined by the Spanish Supreme Court.24 The case involved very typical facts: a pregnant woman underwent screening to test the foetus for Downs Syndrome; the screening was performed negligently, and the mother ultimately gave birth to a Downs Syndrome baby. The Court found the negligent parties liable to both the parents (wrongful birth) and the child (wrongful life). It is not clear to me from the account I have read whether the Court considered the arguments against wrongful life claims that have prevailed in other jurisdictions, or referred to court decisions in them. It would be disappointing if it did not. One very notable aspect of the decision, however, is that the Court ruled – remarkably, as the Spanish reporter observes – that compensation was also payable to the baby’s sister. The reporter notes that it is unclear which of the sister’s interests was infringed.25 Such a decision seems, however, to have been foreseen by C. van Dam in his European Tort Law: he suggests that a birth in analogous circumstances (in fact, he was talking of wrongful conception) might affect other children in the family and so constitute an interference with the right to private and family life.26 The decision is certainly striking, and so far as I know has no precise European precedent.
12
The issues of wrongful birth and life were also considered – directly or indirectly – in two recent decisions of the Polish Supreme Court. In the first,27 an appeal from a case reported in Yearbook 2005,28 the Court reversed the ruling of the Court of Appeals and – for the first time – accepted a claim for wrongful birth, based on the rights of the parents to plan a family. The mother had been refused an abortion which she was entitled to have by reason of the foetus’s genetic condition. It was not the child’s birth that constituted the damage but the additional cost of raising and maintaining a disabled child. The child said the Court – in direct opposition to dicta in the Court below – has no right not to be born and therefore no claim for pecuniary loss. Therefore, although the Supreme Court was not directly concerned with a claim brought by or on behalf of the disabled child, its reasoning seems to diminish the prospect that the Polish courts will endorse claims for wrongful life in the future.
13
20 21 22 23 24 25 26 27 28
O. Massot, France, YB 2001, 191 (no. 22 ff.). P. Brun, France, YB 2002, 179 (no. 17 ff.). See O. Moréteau, France (supra 196), no. 12 ff. M.G. Faure/T. Hartlief, The Netherlands, YB 2005, 414 (no. 15 f.). Sentencia del Tribunal Supremo, 18.5.2006. See A. Ruda, Spain (supra 429), no. 31 ff. A. Ruda, Spain (supra 429), no. 36. Van Dam (fn. 15), § 706-1. Sąd Najwyższy, 13 October 2005. See E. Bagińska, Poland (supra 373), no. 49 ff. E. Bagińska, Poland, YB 2005, 457 (no. 77 ff.).
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14
In the second case,29 a woman was raped and became pregnant. She was unlawfully refused an abortion by her hospital and subsequently gave birth to a healthy child. In previous proceedings, considered in Yearbook 2004,30 the Supreme Court ruled that a child born healthy has no claim for damages but acknowledged the mother’s right to recover pecuniary losses resulting from the defendant’s unlawful refusal of the abortion. The case came back to the Supreme Court to determine the recoverable damages, and in particular whether the damages should include a sum representing the value of the support that the (untraceable) father would have been liable to provide had he been traceable. The Court ruled that the defendant was liable for the costs of child support to the extent that they could not be borne by the mother. The decision is one of several this year in which the country report notes that the national court engaged in a comparative analysis of decisions in other jurisdictions on the matter at issue. The Court’s reasoning is very interesting – if we can look at it in coldly analytical terms – because it suggests that the damage is such cases is not the birth as such, in respect of which the natural claim would be by the child, but the economic costs of raising and educating the child, which the parents have to bear. It has been suggested elsewhere that – in the typical wrongful birth/life scenario where the child is born with severe disabilities – it is a mistake to treat the damage as “the handicapped life” rather than “the costs of the handicap”.31 In fact, as the present case shows, the same underlying analysis applies whether the child is born with a disability or not. The damage in both scenarios is simply the costs of life, and not the life itself. Such reasoning may explain why, in another case of wrongful birth in 2006, this time involving a disabled child, the Austrian Supreme Court (Oberster Gerichtshof) awarded the mother compensation in respect of her child’s entire maintenance costs, and not merely the additional costs attributable to the child’s disability.32
15
A subtly different scenario came before the Hungarian Supreme Court.33 Damages were awarded both to a mother and to her children when the latter were born with brain damage which was partly attributable to the defendant’s failure to secure specialised care for the mother during her pregnancy. There does not appear to have been any suggestion that the mother was deprived of the opportunity to terminate the pregnancy on grounds of the risk of disability. Rather the defendant’s responsibility was for causing the injury (by failing to intervene) rather than for causing the birth. Though described in the Hungarian report as a claim for wrongful life,34 I would regard it as a (less problematic) claim in respect of pre-natal injury, for which it was natural to allow the children to claim. It is interesting, however, that the mother too was awarded damages for both pecuniary and non-pecuniary loss. The former, at least, can certainly be justified – on the basis that it was the mother who was going to 29 30 31 32 33
34
Sąd Najwyższy, 22 February 2006. See E. Bagińska, Poland (supra 373), no. 49 ff. E. Bagińska, Poland, YB 2004, 462 (no. 19 ff.). Van Dam (fn. 15), § 707-2. OGH 7 March 2006. See B.C. Steininger, Austria (supra 68), no. 5 ff. BH 2006 no. 360. See A. Menyhàrd, Hungary (supra 269), no. 24 ff. Cf. the genuine case of wrongful life considered by A. Menyhàrd, Hungary, YB 2004, 332 (no. 9 ff.). Ibid., no. 26.
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bear the financial cost of coping with the children’s disabilities – though it would be a formidable objection in some jurisdictions that, so far as the mother was concerned, the loss was purely economic. The issue of wrongful conception also arose in the year under review. In Austria, the Oberster Gerichtshof considered for the first time the issue of maintenance costs for a healthy child born after an unsuccessful sterilisation.35 It concluded that the birth of a healthy though unwanted child cannot be considered as damage, though it was prepared to countenance the award of compensation where (contrary to the facts of the case at hand) the costs of maintaining the child would result in an extraordinary financial burden on the parents. The reporter notes a lack of consistency in the Court’s jurisprudence in this area,36 a deficiency that is assuredly not limited to Austria.
16
Finally, those who view cases of wrongful conception as concerned primarily with reproductive autonomy may find something of interest in a Czech decision involving damage to frozen sperm.37 The sperm was damaged, the donor couple was unable to conceive, and the Court awarded damages for interference with reproductive capacity. This seems to me to represent the flip-side of the coin to the normal wrongful conception scenario. There the mother conceives when she did not want to. Here the mother is deprived of the chance to conceive. It is the same interest – reproductive autonomy – that is infringed.
17
2. Causation Once again, the issue of factual (or natural) causation has thrown up some very interesting cases. It is apparent that courts in a number of different jurisdictions are exploring innovative solutions38 to perceived problems of uncertain causation. In several countries, the courts have now recognised liability for exposing another person to risk and/or for loss of chance. Where such liabilities are recognised, the follow-up question arises of their extent (full solidary (“joint and several”) liability, or proportional).
18
Of particular note in 2006 were very significant developments in English and Dutch Law on the use of proportional liability in cases of alternative causation. It will be recalled that PETL provides for a proportional liability solution in cases where multiple activities would “each alone… have been sufficient to cause the damage, but it remains uncertain which one in fact caused it” (art. 3:103(1)) and where, “in case of multiple victims, it remains uncertain whether a particular victim’s damage has been caused by an activity, while it
19
35
36 37
38
OGH 14 September 2006. See B.C. Steininger, Austria (supra 68), no. 18 ff. See also P. Loser, Switzerland (supra 474), no.16 f. B.C. Steininger, Austria (supra 68), no. 21 ff. Nejvyšší soud České republiky, 22 June 2006. See J. Hrádek, Czech Republic (supra 123), no. 92 ff. An additional alternative is to reverse the burden of proof: see J. Lahe/I. Kull, Estonia (supra 178), no. 10 ff. Cf. P. Loser, Switzerland (supra 474), no. 18 ff. (no reversal in the burden of proof in respect of loss which is to be attributed to false statements in a company prospectus).
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is likely that it did not cause the damage of all victims” (art. 3: 103(2)). These two situations may be referred to, respectively, as the case of the indeterminate defendant and the case of the indeterminate victim. PETL also provides for proportional liability in cases of uncertain partial causation, where neither the damage nor a determinable part of it has been caused by any single activity (art. 3: 105), and where a possible cause of the damage lies within the victim’s sphere (art. 3:106). This proportional liability may at one time have seemed somewhat radical: previous decisions tended either to deny liability altogether or apply joint and several liability, leaving each defendant at risk of liability in the full amount. The Principles commentary remarks that the proportional liability approach “is not (entirely) in line with the common core.”39 With recent developments, this quasi-apologetic tone may no longer be warranted.
20
In its Fairchild decision of 2002,40 the English House of Lords recognised an exception to the but-for test (causa sine qua non) to be applied in cases of both indeterminate defendants and indeterminate victims, though the scope for the exceptional approach in the latter scenario is rather unclear. The liability was premised on the defendant’s material contribution to the risk of injury, rather than to the injury itself. In May 2006, the House of Lords clarified both that the liability is proportional – a point left undecided in Fairchild – and that the Fairchild approach applies even where the injury may have resulted from a cause within the victim’s own sphere, so long as the alternative risks involved the same causal mechanism.41 In the case in question, the claimant suffered mesothelioma after his exposure to asbestos in successive employments, which included a number of periods of self-employment. His damages were reduced to reflect those latter periods of exposure. The actual decision – on its specific facts – was quickly reversed by statute,42 but the principle is of continued application at common law, applying to injuries other than mesothelioma.
21
In the Netherlands, the Hoge Raad accepted proportional liability in a decision of 31 March 2006,43 also concerned with asbestos exposure. (The decision seems to have been anticipated by a previous asbestos case, reported in the Digest, at canton appellate level.44) In the Hoge Raad case, the claimant’s injury was lung cancer, which – unlike mesothelioma – is frequently triggered by factors quite independent of exposure to asbestos. A number of alternative causes were considered: genetic predisposition, the claimant’s smoking, and “background risk”. These, it may be noted, are all factors in the claimant’s sphere. 39
40
41
42 43 44
PETL art. 3:102 cmt. 9 (46). See further T. Kadner Graziano, Principles of European Tort Law, in: B. Winiger/H. Koziol/B.A. Koch/R. Zimmermann (eds.), Digest of European Tort Law, vol. I (2007) 6a/28 and 6b/28. Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22. See K. Oliphant, England and Wales, YB 2002, 142 (no. 6 ff.). Barker v Corus (UK) Ltd [2006] UKHL 20. See K. Oliphant, England and Wales (supra 153), no. 20 ff. Compensation Act 2003, sec. 3. See K. Oliphant, England and Wales (supra 153), no. 1 ff. Hoge Raad, 31 March. See M.G. Faure/T. Hartlief, The Netherlands (supra 338), no. 22 ff. W.H. van Boom/I. Giesen, The Netherlands, in: B. Winiger/H. Koziol/B.A. Koch/R. Zimmermann (eds.), Digest of European Tort Law, vol. I (2007) 6b/8 no. 7 ff.
Comparative Remarks
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It could not be proven which of the possible causes, whether alone or in combination, was in fact the cause of the claimant’s lung cancer. The Hoge Raad rejected an all-or-nothing approach which would have left the consequences of causal uncertainty exclusively on either the employer or the employee, and opted instead for a proportional liability approach. It found the employer liable but reduced the damages “to the extent to which circumstances which can be attributed to the employee have also contributed to his damage.”45 One may query whether it is right here to talk of the employee’s contribution to the damage: Is it not more accurate to inquire into each party’s contribution to the risk? Nevertheless, the effect of the Hoge Raad’s decision is dramatic. It applies not just where factors within the victim’s sphere may have contributed to the injury concurrently with the exposure attributable to the defendant, but also (it seems) where the injury may have resulted exclusively from such factors with the defendant’s tortious conduct playing no role at all (alternative causation: indeterminate victim).46 It seems therefore to go considerably further than the English case-law, which allows a departure from the but-for test in cases of alternative causation only where the alternative factors are of the same or similar nature. But both jurisdictions – in their own ways – have recognised the merits of the proportional liability approach advocated in the Principles.
22
The exceptional approaches to the proof of factual (natural) causation developed in employers’ liability cases have not universally found favour in other contexts, notably that of medical malpractice. But here, another route – damages for loss of a chance – may be followed to reach the same destination, albeit while raising certain theoretical difficulties on the way.
23
In 2006, a number of national courts considered the issue of loss-of-chance damages in the context of medical injuries.47 In Hungary, the Supreme Court awarded damages for loss of chance in connection with a child’s premature birth with serious brain damage.48 The circumstances of the pregnancy were such that there was in any case a considerable risk of premature birth and brain damage but the defendants’ failure to provide the mother with specialised care increased the risk. The Court determined that the defendants should be liable for 30% of the damage. It appears that there was disappointingly little supporting analysis in the judgment.
24
The Belgian Supreme Court also considered the issue of loss of chance in the medical context in 2006, though did not apply it on the facts of the case with
25
45 46
47
48
M.G. Faure/T. Hartlief, The Netherlands (supra 338), no. 24. Note the Hoge Raad’s statement that the proportional liability approach applies “where it cannot be established with sufficient certainty to which extent the damage of the employee has been caused by all of these circumstances or one of those” (ibid., no. 24, emphasis added). Cf. the alternative approach of awarding “loss of chance” damages for interference with the patient’s personal autonomy, rather than for the lost chance of avoiding a particular injury, as in a Spanish decision (STS 12.5.06) noted by A. Ruda (supra 429), no. 41 ff. BH 2006 no. 360. See A. Menyhàrd, Hungary (supra 269), no. 24 ff.
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which the Court was concerned.49 The case was one of failure to inform a patient to return quickly to the hospital in case of adverse reaction following surgery. An adverse reaction occurred, but the patient waited ten hours before returning to the hospital. He had to endure invasive procedures that would not have been necessary without the delay. The first-instance court found – with what the Supreme Court termed a sufficient degree of probability – that these consequences would have been avoided if the surgeon had complied with his duty to inform. The first-instance court nevertheless awarded damages on a loss-of-chance basis, producing a sum much smaller than that which the patient claimed. The Supreme Court allowed the patient’s appeal: Having found with a sufficient degree of probability that the patient would have avoided the more invasive procedures if properly informed, it was not open to the lower court to decide that the patient’s damage consisted in the lost chance of timely treatment. The Belgian reporter argues that the case should not be interpreted as a clear-cut rejection of the theory of loss of chance, as the Supreme Court’s conclusion followed inevitably from the factual findings of the lower court.50 But if a finding that the patient would avoid the injury with a sufficient degree of probability precludes a loss-of-chance approach that might otherwise be adopted, the question arises: What is the threshold of probability at which one switches approaches? If the ordinary standards of proof are applied, would this not be to let the patient have his cake and eat it too? It seems to be contemplated51 that, where the patient satisfies the ordinary standards of proof, the orthodox approach applies and he gets full damages, but, where he does not satisfy those standards, he can still fall back on the loss-of-chance analysis and get a percentage of the damages he has claimed. This risks injustice to the defendant, who may be held liable disproportionately to the risk for which he is responsible, and for the same reason distorts the economic incentives under which potential defendants operate, perhaps resulting in inefficient accident prevention measures and other forms of detrimentally defensive behaviour. These, of course, are issues that have been raised everywhere that loss-ofchance damages have been considered.
26
It is far from clear that such problems are resolved by the simple expedient of switching from the rubric of loss of chance to that of alternative causation. The latter is employed in medical malpractice cases in Austria, as was illustrated last year by a case of complications following laser eye surgery.52 The causal agency was either healing problems after the surgery or the claimant’s progressive development of cataracts. The latter was a factor within the claimant’s sphere. The surgeon’s liability, subject to proof of causation, was based on his failure to disclose treatment risks, but for which the claimant would not have had the surgery nor suffered healing problems. In principle, the Court ruled, 49
50 51
52
Cour de cassation/Hof van Cassatie, 12 May 2006. See I.C. Durant, Belgium (supra 93), no. 40 ff. Ibid., no. 44–45. See also Kadner Graziano (fn. 39) 10/28 no. 1 ff. Cf. the approach taken in the “indeterminate victim” scenario, where proportional liability is contemplated even if the proportion of the risk attributable to the defendant exceeds 50 percent: ibid., 6c/28 no. 1 ff. OGH 26 July 2006. See B.C. Steininger, Austria (supra 68), no. 39 ff.
Comparative Remarks
509
the damage should be divided between claimant and defendant if the causal uncertainty could not be resolved by further investigation. The case was remanded to the court of first instance to decide whether it would be reasonable to require the claimant to undergo surgery to determine the cause of the complications with greater certainty. The case follows well-established Austrian court practice in relation to alternative causation in medical malpractice cases, but is significant as the first application of the proportional liability solution to a case in which the basis of the medical liability was the violation of a duty of disclosure (but note the Court’s requirement of grave treatment error). The Austrian approach has a different starting point from that entailed by the theory of loss of chance, because it does not redefine the damage that is the gist of the cause of action, and it has been argued that it addresses the problems inherent in the loss-of-chance analysis.53 It seems to me, however, that some questions may yet have to be answered, for example, whether the possibility of establishing causation on two independent bases – either under the ordinary rules (resulting in 100% liability) or under the theory of alternative causation (resulting in proportional liability) – results over time in a compensatory burden greater than the risks fairly attributable to medical malpractice. 3. Non-Pecuniary Loss on the Death/Injury of Another Person Another area generating a critical mass of decisions in 2006 was that of “secondary” non-pecuniary loss. In the course of its researches, the European Group on Tort Law found that the majority of European legal systems allow the award of damages for non-pecuniary loss to relatives of direct (or primary) victims, and that some do so also in non-fatal cases – an approach which a majority of the Group preferred.54 The Principles of European Tort Law accordingly state: “Non-pecuniary loss can also be the subject of compensation for persons having a close relationship with a victim suffering a fatal or very serious non-fatal injury.”55 The Principles do not define “very serious” injury, nor do they provide a fixed list of persons who may claim. But the Commentary to the Principles accepts that “a de facto cohabitation comparable to that of husband and wife would nowadays clearly attract such damages.”56 However, it is evident – even from previous Yearbooks – that such a statement is rather more optimistic than the experience of some national jurisdictions allows. And this was confirmed again in 2006. In Greece, the Supreme Court, overruling the Court of Appeal, ruled that the term “family of the victim” in the relevant Code provision did not extend to a woman who, following the Gypsy custom, had cohabited outside marriage with the deceased for more than 20 years, and had with him a son (aged 19 at the date of the accident).57 Her situation was different from that of the fiancée, who could be viewed as a member of the family by virtue of her intention to get 53
54 55 56 57
H. Koziol, Comparative Report, in: B. Winiger/H. Koziol/B.A. Koch/R. Zimmermann (eds.), Digest of European Tort Law, vol. I (2007) 10/29. PETL Art. 10:301 cmt no. 5. PETL Art 10:301 para. 1, sent. 3. PETL Art. 10:301 cmt no. 8. Areios Pagos 1735/2006. See E. Dacoronia, Greece (supra 237), no. 54 ff.
27
28
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married in the future. The Court noted that a decision to the contrary “would overturn the constitutionally protected institution of marriage.”58 The reporter observes that the Court shows here “a rather old-fashioned face”, and prefers to justify the decision on the ground that “the custom of free cohabitation of the Gypsies cannot abolish the rules that regulate the institution of marriage and which are of public order.”59
29
By contrast, the Polish Supreme Court has joined those courts that have recognised the rights of an unmarried but cohabiting partner, interpreting the term “closest family member” in the light of political, economic, social and cultural changes in Polish society that have seen unmarried cohabitation become firmly established and no longer the subject of moral disapproval.60
30
In the same context may also be noted last year’s reform of the Spanish scheme of public compensation for the victims of terrorism, extending survivor’s benefits beyond married couples to unmarried cohabitants in a de facto partnership.61
31
A new dimension to this issue has been opened up by the introduction in many states of registered civil partnerships for non-married couples (same sex and/or heterosexual). In the Netherlands, the question arose last year whether a more restrictive approach was to be taken to the compensation of non-pecuniary relational losses suffered by those who chose to cohabit outside either marriage or a registered civil partnership.62 The compensation payable is governed by different provisions of the Code, depending on whether there is simple cohabitation or a formal partnership, and the Court of Appeals thought that this justified a more restrictive approach to unmarried partners. The Hoge Raad took the contrary view. The legislative history revealed no intention that the different relationships should be treated unequally. In both situations, the crucial issue was the needs of the survivor – and the same test of those needs applied. In the Greek case mentioned above, however, the Court declined to extend the protection given to married partners to persons living in “free union”, even though this status has been recognised by legislation since 1983.63
32
In most national systems where claims for relational non-pecuniary damage have been allowed, there has been express legislative provision. A notable judicial development, by contrast, can be seen in a decision of the Swedish Supreme Court in April 2006.64 There the Court extended the statutory survi58 59 60
61 62
63 64
Ibid., no. 56. Ibid., no. 58. Sąd Najwyższy, 13 April 2005. See E. Bagińska, Poland (supra 373), no. 22 ff. Cf Högsta domstolen, 29 December 2006 (see H. Andersson, Sweden (supra 456), no. 20 ff), which shows that it is not an issue in that country that the deceased’s partner had not been married to her. See A. Ruda, Spain (supra 429), no. 3. Hoge Raad, 16 December 2005. See M.G. Faure/T. Hartlief, The Netherlands (supra 338), no. 30 f. See especially E. Dacoronia, Greece (supra 237), no. 56. Högsta domstolen, 5 April 2006. See H. Andersson, Sweden (supra 456), no. 4 ff. For a comparable judicial development last year, in another national system, see A.G. Dias Pereira, Portugal, YB 2005, (no. 34 ff.).
Comparative Remarks
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vor’s benefits to “near death” situations which it regarded as analogous to the fatal cases for which there was express provision in the Tort Liability Act. The preparatory works revealed that there was no intention to exclude non-fatal cases absolutely. The facts of the case – the primary victim was in a coma for two weeks with life-threatening injuries – certainly demonstrate that the psychological impact of a relative’s non-fatal injury can be at least as great as in cases of death. This case leads us naturally to the question of claims for non-pecuniary loss arising out of a non-fatal injury to a relative – a particularly controversial issue. In some countries, the right to recover is recognised in legislation, provided the injury is sufficiently serious, but the liability may be regarded as exceptional and for that reason to be narrowly construed, as in a recent case before the Slovenian Supreme Court.65 The same restrictive approach is also evident in countries where the right is founded on court practice rather than express statutory provision. The Swedish Supreme Court’s insistence on a “near death” situation has already been noted.66 A decision of the Austrian Oberster Gerichtshof is not dissimilar, stressing that the secondary victim’s claim depends on the primary victim suffering a “most severe” injury.67 In Spain, by contrast, a more lenient approach seems to prevail. A mother was awarded in excess of € 90,000 as compensation for non-pecuniary loss suffered in consequent of the birth of her child with partial paralysis of one arm, an amount that was reduced by one half on appeal to the Supreme Court, thereby sparking a controversy which last year reached the Constitutional Court.68 It is difficult to draw any firm conclusions from such decisions, beyond the somewhat trite observation that this is a developing area where little consistency across national boundaries is yet to be found.
33
D. AREAS FOR FURTHER RESEARCH The issues I have mentioned have already been explored in detail by comparative reports issued by ECTIL/ETL – with the partial exception of wrongful conception, birth and life which, though addressed by Children in Tort Law,69 is perhaps a bigger subject than could be done full justice there. A more focussed project would have considerable value. In addition, certain other areas meriting further attention from the perspective of comparative tort law were suggested by developments in national systems in 2006, and I shall conclude by being so bold as to propose a few possible topics for future research. 65
66 67
68 69
Judgment of the Supreme Court II Ips 517/2005. See R. Lampe, Slovenia (supra 417), no. 38 ff. (interpreting the statutory concept of “severe disablement”). No. 32. OGH 12 June 2006 (see B.C. Steininger, Austria (supra 68), no. 26 ff.) wife’s depressive disorder following husband’s post-traumatic stress disorder (PTSD) from an accident in which he escaped physical injuries; the PTSD was insufficiently serious to allow the wife to claim as a secondary victim. Sentencia del Tribunal Constitucional 42/2006. See A. Ruda, Spain (supra 429), no. 24 ff. Martín-Casals (fn. 5).
34
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1. Punitive and Aggravated Damages
35
In 2006, a number of jurisdictions made legislative provision for punitive damages claims in respect of particular wrongs (Italy,70 Lithuania,71 and possibly Slovenia too72) or raised questions about the possibly punitive element within damages payable purportedly as compensation, especially where the character of the tortfeasor’s wrong may be taken as aggravating the damage suffered (Lithuania again).73 The Swedish reporter, however, strenuously denies the latter arguments on the grounds that, in his jurisdiction, it is a “misunderstanding” to view the standardised doubling of non-pecuniary damages in cases of intentional acts as punitive.74 Whatever the truth of such matters, it certainly appears to be the case that several jurisdictions are reconsidering their attitude towards punitive damages – which have also become an issue of increasing scholarly interest, even within civil law systems75 – and that they may well warrant further sustained analysis from a comparative perspective. 2. Prescription (Limitation)
36
The issue of time limits has been identified before as a possible area for further comparative research,76 perhaps especially because it was not a matter for which provision was made in the European Group’s Principles of European Tort Law. Developments this year show that the issue is in fact of continuing and topical importance. In Poland, a new Bill77 was enacted by Parliament but vetoed by the President – it would have extended the long-stop limitation period from 10 to 20 years – and there were cases on the matter in both the Supreme Court and the Constitutional Court.78 Prescription issues also came before the Supreme Courts of Greece79 and Ireland80, and the ECJ.81 So far as I know, the issue has not previously been explored in a comparative study, but the time certainly seems ripe.
70 71
72
73
74 75 76 77
78
79 80
81
Legge 21 February 2006, no. 102. See E. Bargelli, Italy (supra 299), no. 6 ff. Amendments to Laws on Intellectual Property Rights. See H. Gabartas/M. Laučienė, Lithuania (supra 322), no. 1 ff. Act on Changes and Completion of the Copyright Act. See R. Lampe, Slovenia (supra 417), no. 18. Lithuanian Supreme Court, 12 June 2006 (see H. Gabartas/M. Laučienė, Lithuania (supra 322), no. 5 ff.); Lithuanian Supreme Court, 2 June 2006 (see H. Gabartas/M. Laučienė, Lithuania (supra 322), no. 21 ff.). See also A.G. Dias Pereira, Portugal (supra 394), no. 41. H. Andersson, Sweden (supra 456), no. 30. See, e.g., the book noted by A.G. Dias Pereira, Portugal (supra 394), no. 70. See, e.g., B.A. Koch, Comparative Remarks, YB 2002, 512 (no. 51 ff.). Bill of 13 July 2006 on the Revision of the Civil Code. See E. Bagińska, Poland (supra 373), no. 1 ff. Sąd Najwyższy, 17 February 2006 and TK 1 September 2006. See E. Bagińska, Poland (supra 373), no. 75 ff. Areios Pagos 603/2006 and 1698/2006. See E. Dacoronia, Greece (supra 237), no. 59 ff. L.O’K. v L.H., The Minister for Education and Science, Ireland & The Attorney General [2006] IEHC 13. See E. Quill, Ireland (supra 281), no. 21 ff. Declan O’Byrne v Sanofi Pasteur MSD Ltd et al. [2006] ECR I-1313. See B.A. Koch, European Union (supra 487), no. 17 ff.
Comparative Remarks
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3. Tort Law and Company Law Finally, a matter perhaps warranting consideration in the longer term: tort law and company law. One important issue, which has arisen before in other jurisdictions, was addressed last year in a decision of the Lithuanian Supreme Court:82 does the corporate veil shield from liability the directors of the company (even a director who is the sole shareholder)? Answer: No, at least in cases of fraud. Related questions of the liability of corporate managers to persons other than the company itself were also considered last year by the Hungarian legislator.83 In France, where employees enjoy an immunity in respect of acts done in the course of employment, it was affirmed last year that the immunity applies even if the employee is also a director of the company.84 It is not enough that the normal prerequisite of directors’ liability – faute détachable – is satisfied. As the French reporter observes, the immunity “causes the victim to bear the risk of the employer’s insolvency.”85 He notes the Catala project’s support for legislative provision to allow claims against the employee whenever the employer is unable to meet the claims against him.86 Such developments fortify my impression that issues at the interface of tort and company law are now being addressed in a number of different national systems,87 and could well warrant a full comparative study in due course.
82 83
84 85 86 87
25 May 2006. See H. Gabartas/M. Laučienė, Lithuania (supra 322), no. 34 ff. Act IV. of 2006 on the Amendment of Act XLIX. of 1991 on Bankruptcy, Insolvency and Liquidation. See A. Menyhàrd, Hungary (supra 269), no. 2. CA Lyon, 19 January 2006. See O. Moréteau, France (supra 196), no. 42 ff. Ibid., no. 44. Ibid. Note also the issue of directors’ liability in respect of false statements in company prospectuses, considered by P. Loser, Switzerland (supra 474), no. 18 ff.
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Further Contribution
Romania Ionut Raduletu
1
The present report on Romanian law is the first to be published in the European Tort Law series. Therefore it proposes a general picture of tort law in Romania (including doctrine, legislation, case law and literature), without confining itself to last year’s developments. Its main concern is to identify the key features of the current tort law system of this new EU Member State, so as to facilitate any subsequent comparative analysis.
A. TORT LAW FRAMEWORK 1. Introduction a) Evolution of Romanian Tort Law
2
Romanian civil law is to a large extent based on the Civil Code (CC) from 1864, which itself was drafted on the model of the Code Napoleon (C.civ.) of 1804. Accordingly, Romanian tort law (art. 998–1003 CC) traditionally follows the general clauses system of the French code. The general rule of art. 998 CC (“Any human deed which causes harm to another creates an obligation in the person by whose fault it was caused to compensate it”) is the close reflection of its French counterpart in art. 1382 C.civ.
3
Nevertheless, the French model was received through the intermediary of the so-called Pisanelli project (1863) for the Italian Civil Code (IC) of 1865 (art. 1151–1156 IC), which explains the introduction of some new provisions (e.g. art. 1003 CC on joint tort liability, based on art. 1156 IC), as well as the slightly different structure of the Romanian Code compared to the French one (see also infra no. 66).
4
As in France (and Italy, before the reform of the Codice civile in 1942), the scarcity of regulation in the code left the courts and the doctrine with the duty to interpret the legal provisions and to develop them into a comprehensive set of rules, able to cover the diversity of cases in tort litigation.
5
In parallel, legislative reforms were initiated, in order to modernize Romanian civil law. A first project for a new civil code was prepared in the 1930s and
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promulgated in 19401, but its entry into force was delayed and later abandoned, due to the war and to the subsequent political changes. Another attempt at a substantial reform, which was also not implemented, dates back to 1971.2 The most recent project of a new civil code (based mainly on the Code Civil of Quebec from 1991) was adopted by the upper Chamber of the Romanian Parliament (Senat) in September 20043, whereas the lower Chamber has not debated it yet. Whether this last proposal will ever come into force is still unclear: after the building of a new political majority in the legislative (following the elections of November 2004), the project seems to have been suspended for the time being.4 b) Relation to Other Legal Fields
(i) Contract Law The relation between contractual and tortious liability is largely debated in the doctrine, with the majority of commentators pleading for a monistic theoretical approach: due to the fact that both forms of liability are basically directed towards compensation for the damage caused by a wrongful and faulty act (the premises being thus similar), it is not so relevant whether the source of the claim is of a legal or a contractual nature. Still, it has to be underlined that tortious liability is seen as the general rule (acting by virtue of a legal obligation), whereas contractual liability has a special, derogatory character (acting by virtue of a private obligation). One may thus speak about the subsidiary character of tort law against contract law.
6
Numerous other differences subsist however: apart from the said scope of application, they concern the legal capacity (broadly conceived in tort law, where only discernment is basically required), the burden of proof (lying in principle on the victim in tort and on the debtor in contract), plurality of subjects (solidarity of tortious liability against divisibility of contractual liability), default rules (reminder by the creditor only necessary in contract), non-liability clauses (subject to stricter conditions in tort law), foreseeability of damage (required only for contractual liability), international private law competence (lex loci delicti commissi in tort against lex voluntatis in contract), etc.5
7
1
2
3
4
5
Monitorul Oficial (M.Of., Official Journal) 306/1940. Though not departing from the initial French model, it had a broader inspiration, integrating Swiss, German or Austrian influences – for the preparatory works (including tort law aspects) see M. Eliescu, Câteva cuvinte despre proectul Codului Civil, in: Consiliul Legislativ. Zece ani de activitate 1926–1936 (1937) 167 ff. Proiectul Codului Civil al Republicii Socialiste România, Bucharest 1971 (for tortious liability, see art. 339–371). Although positive tort law remained ultimately unchanged during communism, its interpretation by the doctrine and courts was substantially influenced by political commitments. The present contribution refers in some points to this changing context of Romanian tort law, but the issue would be worth a specific and comprehensive study. Registered with the Senate under no. L145/2004. For the text proposed by the Government, see Curierul Judiciar no. 3/2004, 121 ff. (tort liability: art. 1095–1138). It is nevertheless probable that changes of the tort legislation will take place in the near future, due also to the ongoing substantial reform of the French law of obligations. For a detailed presentation, see for instance L. Pop, Teoria generală a obligaţiilor (1998) 353 ff.
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In principle, Romanian case law and doctrine do not accept a cumulation of contractual and tortious liability (following in so far the French approach): the creditor of a non-fulfilled contractual obligation may only file a civil action in damages based on contract (i.e. she can neither cumulate nor opt between the two types of liability). An exception is only made for cases where the nonfulfilment of a contract represents at the same time a criminal offence, as an option right is then allowed (but still no cumulation in the proper sense). (ii) Criminal Law
9
Contrary to tortious liability (and more generally to civil liability), criminal liability is not aimed at compensating the damage suffered by the victim (as a result of any wrongful act), but at punishing the person liable for specific offences, restrictively defined by law (nullum crimen sine lege). From a procedural point of view, the exercise of the criminal action lies in most cases on competent public authorities (ex officio), whereas the exercise of the action in damages lies on the injured person.6
10
Despite these differences, tortious and criminal liability are often encountered together in practice, as any criminal offence resulting in (material or moral) damage entitles the victim to civil compensation. The same person may thus be subject to both liabilities on the basis of the same wrongful conduct. This explains why in such cases civil and criminal actions are usually dealt with by the same (criminal) court (see also infra no. 77). For the injured person, this is more time and cost effective. 2. Types of Tort Liability I. LIABILITY FOR ONE’S OWN CONDUCT a) General Conditions of Liability
11
The general conditions of liability are established by art. 998 and 999 CC. While art. 998 CC introduces the four main elements of liability, as they are currently identified by the doctrine (i.e. damage, wrongful conduct, causation and fault), art. 999 CC stipulates that fault for damage arises not only from intentional activity, but also from a negligent or imprudent conduct.
12
It has to be mentioned from the very beginning that Romanian tort law follows in general the principle of wrongful/unlawful behaviour (“Verhaltensunrechtslehre”) rather than that of the wrongful result (“Erfolgsunrechtslehre”). At the same time, wrongfulness (“ilicitul”) is considered from a legally objective point of view, i.e. independently of the subjective attitude of the tortfeasor towards her conduct and its results, on the one hand, as well as of her discernment capacity, on the other hand.7 Accordingly, wrongful conduct is in principle listed as a specific element of tortious liability, different from fault (see also infra no. 20). Whereas damage, causation and wrongful conduct build up 6 7
C. Stătescu/C. Bîrsan, Drept civil. Teoria generală a obligaţiilor (2002) 138 ff. M. Eliescu, Răspunderea civilă delictuală (1971) 143 f.
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the objective side of tort, fault is the subjective side and as such the basis for ascribing the liability (“imputabilitatea”) to a specific person.8 aa) Damage (i) Definition The damage is usually defined as the harm suffered by the victim, as a consequence of the (wrongful) act of the tortfeasor (or caused by a person for whom she is liable or by an animal or a thing respectively, whose care lies in her responsibility – as far as other types of tortious liability are concerned).
13
(ii) Compensable Damage The scope of the protection granted under Romanian tort law (whether only subjective rights or even specific interests are covered) was an issue often scrutinized in the doctrine and case law. While the compensation for damage to a person’s subjective rights is never questioned, it is debated if interests other than rights may also fall within the scope of protection. Although this is sometimes denied9, the majority of authors accept that when a (legitimate) interest had a certain stability in time, so that the injured person relied on it as on a quasi-right (e.g. the case of a child relying on the support she used to receive from the victim of tort), it is also to be protected and correspondingly compensated under tort law.
14
In order to qualify for compensation, the damage has to fulfil two specific requirements: to be certain and not yet compensated. Certainty is given in case of an actual or a foreseeable harm if the latter is (already) assessable. As regards its compensation, the general principle that the tortfeasor should pay has to be adapted to the cases where a third party, either voluntarily or by virtue of an obligation (e.g. an insurer), takes over the payment. Such third party may then have a recourse claim against the tortfeasor.
15
(iii) Material and Immaterial Damage Though the compensation is usually of a material nature (be it restoration in kind or money payment – see infra no. 60 f.), it may be due for both a material and/or an immaterial/moral damage (harm). In the latter case, the compensation is usually referred to as moral damages (“daune morale”).
16
On a regular basis, material harm to be compensated results from a tortious act affecting the patrimony of the victim, whereas immaterial harm results from an action affecting the victim as a person (see no. 62 ff.). The two types of consequences of tort (against the patrimony and against the person) may not be entirely separated, as patrimonial objects may have a high personal value, while affecting the person may diminish her capacity of administering and developing her patrimony. Therefore, often both material and moral damages are
17
8 9
Stătescu/Bîrsan (fn. 6) 205 ff. I.M. Anghel/F. Deak/M. Popa, Răspunderea civilă (1970) 85 ff.
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required in compensation for the same tortious action, the outcome depending on the assessment of the specific case by the judge. bb) Wrongful Conduct (i) Definition
18
Following art. 1382 C.civ., Romanian law refers also to “any human deed which causes harm to another” (“orice faptă a omului, care cauzează altuia prejudiciu” – art. 998 CC). In its subsequent interpretation and application, this provision was nevertheless limited to such human conduct which unlawfully causes harm to another (thus speaking of the “unlawful deed” – “faptul ilicit”). Accordingly, the tortious conduct is usually defined as any human deed which, breaching the norms of objective law, causes harm to subjective rights of other persons.
19
Whereas “subjective rights” is extensively interpreted in order to include the legitimate interests of others (see supra no. 14), the notion of “objective law” is also broadly understood, covering not only positive law, but generally accepted standards of conduct too. Insofar it may be more appropriate to speak of wrongful (rather than unlawful) deeds, as the assessment criteria are not confined to those positively prescribed by law.
20
Contrary to the French doctrine10 and to an earlier Romanian approach11, which tended to equate fault and wrongfulness, the post-war Romanian literature (including the most recent) follows a certain objectivist line of thought, according to which wrongfulness characterizes primarily the conduct, from the point of view of both the objective standard of conduct breached and of the protected rights infringed. Therefore a distinction is made between wrongful conduct and fault, both being mentioned as distinctive elements of tortious liability, alongside damage and causation. Accordingly, different defences apply against wrongfulness and against fault (see no. 31 ff.). The accent in assessing wrongfulness is thus on the (breached) norm/standard of conduct, whereas fault defines the subjective attitude of the tortfeasor. (ii) Omission to Act
21
The terminology of the Civil Code suggests a positive deed (“fapta omului”). There is however general agreement, that this wording has to be interpreted extensively, in order to include omissions to act also. This is particularly true for those cases where a duty to act is prescribed by law: the tortious liability of the person subject to this duty may be engaged, as far as her inactivity causes harm to another. The duty to act is most often prescribed by protective laws in specific fields of activity, the victim of the wrongful omission being subject to such protection. 10
11
S. Galand-Carval, Fault under French Law, in: P. Widmer (ed.), Unification of Tort Law: Fault (2005) no. 8 ff. E.g. M.B. Cantacuzino, Elementele dreptului civil (1921) 427.
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cc) Causation The causal relation between wrongful conduct and damage is a further specific requirement for tortious liability. During the communist regime, the doctrinal approach of this issue was quite ideologized: causation was the field of choice for proving the superiority of a Marxist “scientific” conception of law and society (based on the postulate of social determinism) against any civil (bourgeois) “idealistic” method. It was thus proposed to distinguish between causes and conditions and to always look for the ultimate cause of any social event as the sole possible basis for liability in tort (the necessary causation approach).12
22
This method proved too rigid for practice, so that another approach emerged, affirming the so-called unity between causes and conditions.13 Whereas the “necessary cause” theory is based on a dogmatic reductionism of causation to that phenomenon which necessarily determines the damage, the method proposed by Eliescu is more flexible, as it allows for an adequate assessment by the judge of the role played by different conditions in each case. Although this latter approach is a close reflection of the adequacy theory, it was not promoted as such, most probably out of political constraints. Unfortunately most present day treaties of civil law confine themselves to the arguments developed in that time, overseeing their ideological context. This prevents the modernization of Romanian theories on the basis of a real comparative law analysis.
23
dd) Fault (i) Terminology Referring to the subjective dimension of the tortious conduct, the Civil Code uses diverse terminology, speaking of fault (“greşeală”) in art. 998 or of negligence (“neglijenţă”) and imprudence (“imprudenţă”) in art. 999. The doctrine itself often employs an alternative wording such as guilt/fault (“vinovăţie”) or culpability/negligence (“culpă”). A trend seems to be developing towards using the term “vinovăţie” as a general concept, in order to have a common terminology for civil and criminal law.14 For the scope of the present contribution, fault is used in its extensive sense, including the particular connotations of the other civil law concepts mentioned.
24
(ii) Definition Fault is defined as the attitude of the tortfeasor, in the moment of (or right before) the wrongful deed/omission, towards her own conduct and its results. As such, fault consists of both a reasoning and a volitive element. For the assessment of the reasoning element the general standard of conduct of a reasonable 12
13 14
See for instance Anghel/Deak/Popa (fn. 9) 92 ff. This theory failed to provide functional criterion of necessity. Besides, it tended to leave out of the scope of tortious liability those acts which only favoured the damage (conditions), without determining it (causes), thereby diminishing the chances of the victim of being compensated. Eliescu (fn. 7) 128 ff. See I.-D. Romoşan, Vinovăţia în dreptul civil român (1999) 19 ff.
25
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person is usually referred to, whereas the volitive element requires the freedom of will and action of the tortfeasor.15 (iii) Fault Levels
26
The civil law legislation does not provide for a systemic classification of the forms/levels of fault. This is instead the case of criminal law (art. 19 Penal Code – CP), which differentiates between direct and indirect intention, on the one hand, and different levels of negligence, on the other hand. Still, the approaches in civil and criminal law are different: whereas in criminal law only cases of intentional unlawful conduct are relevant in principle, civil liability is activated for the slightest forms of negligence. Therefore, strict differentiations between fault levels are less significant for tortious liability.
27
Due to the fact that, on the basis of the distinct levels of fault taken into consideration, the scope of civil liability is larger than that of criminal liability, it is possible that a person be exonerated of criminal liability for her unlawful conduct while being held accountable under tort law rules. Correspondingly, all (criminal) offences resulting in damage also fall within the scope of tortious liability. (iv) Tortious Legal Capacity
28
Whereas contractual legal capacity is present in principle only from the age of 18, tortious legal capacity is less related to a formal criterion (i.e. age) than to a material/factual criterion, namely the judgement/discernment capacity (“discernământ”) of the tortfeasor. As such, it has to be assessed on a case by case basis, being a matter of evidence. Nevertheless, the law provides for a legal (relative) presumption of judgement capacity from the age of 14.16 Should the tortfeasor be younger than 14, the burden of proof as to her discernment lies on the victim.
29
The tortious legal capacity of mentally disabled persons depends on whether they were legally incapacitated or not at the time of their damaging conduct. In the latter case, their situation follows the general rule: after the age of 14, they have to prove their lack of discernment. In the former case, the tendency is to admit also their tortious liability, but to submit it always (i.e. independently of their age) to the rules applying for minors below the age of 14 (i.e. the victim has to prove the discernment capacity of the tortfeasor).17 b) Legal Person’s Liability for Its Own Conduct
30
The issue of the liability of legal persons is not specifically regulated in the Civil Code. The doctrine and case law refer in principle to the rules valid for natural per15
16
17
Regarding the standard of conduct and the freedom of choice, it should be mentioned that they were both subject to an intense “socialization” during communism – e.g. Eliescu (fn. 7) 175 ff. The recent literature returns to a more neutral approach – e.g. Stătescu/Bîrsan (fn. 6) 207 ff. Art. 25 (3) of the Decree 32/1954 for the implementation of the Family Code and of the Decree on natural and legal persons, Buletinul Oficial (B.Of., Official Bulletin) No. 32/1954. Romoşan (fn. 14) 67 ff., Stătescu/Bîrsan (fn. 6) 213 ff.
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sons. Accordingly, legal persons may be held accountable for their own conduct, as well as for the conduct of others (vicarious liability) or for the things which are in their custody. The own conduct of the legal person is that of its organs: any tortious acts of the latter in the exercise of their function are legally imputed to the legal person itself.18 The legal personality as such implies a distinctive civil liability of the legal person, both contractual and tortious. This excludes the applicability of the rules on vicarious liability for the activity of its organs.19 c) Defences
On the basis of the theoretical distinction it makes between wrongful conduct (“faptul ilicit”) and fault (“vinovăţie”), i.e. between the objective and the subjective dimension of the tortious behaviour, Romanian doctrine also differentiates between defences directed against the wrongful character of the conduct and those against the assignment of fault (“imputabilitate”).20 In both cases, such defences lead in principle to the exclusion of the tortious liability of the actor, due to the lack of one of its essential elements.
31
aa) Wrongfulness Related Defences (Justifications) (i) Self-Defence The civil legislation does not regulate self-defence. This is done by the criminal law in art. 44 CP and this provision applies to tort law cases accordingly (i.e. to those cases where the conduct of the defendant results in a harm to the person of the attacker or to her patrimony). In principle, in order to qualify for a legitimate defence, the said conduct has to be a proportional reaction to a material, direct, actual and unjust attack against the person or the rights of the defendant, or against a public interest, which are thereby highly endangered.
32
(ii) Necessity Similar to self-defence, acting under necessity finds its regulation primarily in criminal law (art. 45 CP). The (damaging) conduct is in principle exempted from its tortious character if it was directed towards saving, from an actual and otherwise unavoidable danger, one’s own (or another’s) life, physical integrity or health, an important good or a public interest. Like for self-defence, a certain proportionality has to be present between the damage caused and the damage avoided; the plaintiff has however a better position under necessity, as in this case the danger does not originate with her.
33
(iii) Lawful Authority Under the defence of lawful authority Romanian doctrine places both the case where the (possibly damaging) conduct is required or allowed by law and the 18 19 20
Art. 35 (3) of the Decree 31/1954 on natural and legal persons, B.Of. No. 8/1954. C. Stătescu, Răspunderea civilă delictuală pentru fapta altei persoane (1984) 128 ff. Though there does not seem to be a general consensus as to this categorization. A few authors, following to some extent the French approach, distinguish between wrongfulness-related and causality-related defences – e.g. Pop (fn. 5) 360 ff.
34
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case where this conduct is ordered by a hierarchically superior public authority (most often relevant in the activity of public agencies, e.g. police or fire fighters). The latter is subject to stricter conditions with regard to the competence of the issuing authority and to the issuing procedure, as well as to the content and implementation of the said order. (iv) Exercise of a Subjective Right
35
The protection granted under Romanian law to subjective rights is confined to their proper exercise. Within these limits, the general principle qui suo jure utitur neminem laedit applies. In this context, defining proper exercise was subject to political circumstances: during communism, civil rights had to be exercised in accordance with the so-called public interest, the burden of conformity lying on private persons. Recently, this conformity with the public interest is rather understood as a requirement for the legislator to define subjective rights in a manner compatible with the general interest. Accordingly, an abuse of rights is only present if they are exercised with the intention to harm another person. (v) Victim’s Consent
36
The validity of a defence based on the victim’s consent to a specific dangerous activity which ultimately results in injuring her (usually referred to in the literature as a “non-liability clause”) was long debated in Romanian doctrine. A majority of authors consider now such a defence valid provided, on the one hand, that the tortious conduct is a consequence of slight negligence (and not of intention or gross negligence). On the other hand, the victim’s consent should in principle be limited to damage against her patrimony, excluding damage to her person. Finally, in order to lead to the exclusion of liability, the said consent has to occur prior to the damage; otherwise we would be in the presence of a settlement (“tranzacţie”, regulated by art. 1704 ff. CC). bb) Fault-Related Defences (i) (Contributory) Conduct of the Victim or of a Third Party
37
The Civil Code does not regulate the contributory conduct of the victim or of a third party and its relevance for the liability of the defendant. Instead, the idea of a contributory conduct as a reason for exoneration of fault and for the proportional reduction of damages was developed by the doctrine and case law. In general, a distinction is made between cases where the fault/liability of the actor is not presumed by law (i.e. art. 998–999 CC) and cases where it is (i.e. art. 1000 ff. CC). In the latter, the defendant may be exonerated of liability only if the contributory conduct amounted to a real force majeure (see infra no. 40). Otherwise, it would only be a reason for the proportional reduction of damages.
38
Where the conduct of a third party is invoked, the third party involved should not herself be the responsibility of the defendant, according to the rules on liability for others (i.e. her child, pupil, agent, etc. – see infra no. 41 ff.). Should
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the contributory conduct of the third party itself constitute a tort against the victim (yet not a force majeure case in favour of the defendant), art. 1003 CC on joint liability applies accordingly. (ii) Casus Fortuitus and Vis Major Although casus fortuitus and vis major are regulated by the Civil Code only in the context of contractual liability (art. 1082–1083 CC), these provisions are valuated to some extent by the doctrine and case law also for the tortious liability. Both casus fortuitus and vis major exclude the fault of the defendant, but casus fortuitus refers to the situations which may not be prevented with the usually required standard of due care and diligence (bonus pater familias), whereas the scope of vis major is confined to those occurrences which may not be avoided at all independently of the standard of care and diligence applied.
39
A typical situation where casus fortuitus defence applies is provided by art. 1000 (5) CC.21 In most other cases (especially in cases of vicarious liability or of liability for things), the defendant is (partially) exonerated only if he proves the interference of force majeure (i.e. an external event, which is unforeseeable and irresistible).
40
II. LIABILITY FOR OTHERS According to the first thesis of art. 1000 (1) CC, a person is equally liable for the damage caused by the acts of persons for whom she is responsible. Though this principle has the appearance of a general clause, it has not emerged yet as such in the practice (contrary to the second thesis of the same article – see infra no. 48 ff.).22 One of the reasons is most probably the different basis on which liability for others is assessed: whereas liability for children or for pupils is based in principle on a so-called presumption of fault, liability for agents is truly vicarious (i.e. objective).
41
a) Liability for Children
The Civil Code regulates in art. 1000 (2) liability of parents for the damage caused by their minor children living with them and in art. 1000 (4) the liability of teachers and craftsmen for the damage caused by their pupils and apprentices respectively. Due to the fact that most commentators limit the scope of the liability provided for in art. 1000 (4) to the damage caused by minor pupils/apprentices23, both paragraphs are referred to here under the same title (Liability for Children). Another argument for this approach is the common 21
22
23
“The father and mother, teachers and craftsmen are not liable for the damage referred to above if they prove that they could not have prevented the damaging act.” There are, however, authors supporting such a development, arguing that the limitation of the liability for others to the cases expressly regulated in art. 1001 (2)–(4) CC is too rigid and inappropriate, considering the diversity of practical cases in modern life – see L. Pop, Discuţii de lege lata cu privire la recunoaşterea existenţei unui principiu de răspundere civilă delictuală pentru fapta altuia consacrat în Codul Civil român, Dreptul no. 8/2004, 55 ff. In this sense also the decision 1198/1984 of the Romanian Supreme Court (Tribunalul suprem), Revista Română de Drept (RRD) 6/1985, 70.
42
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defence prescribed by art. 1000 (5) CC: neither the parents nor the teachers/ craftsmen shall be liable if they prove that they could not have prevented the damaging act.
43
Art. 97 (1) of the Family Code provides for equal rights and obligations of the parents in their relation to children.24 Accordingly, under tort law they are jointly and severally liable for the damaging acts of their minor children. Parental liability is cumulated with the liability of the minor child for her own conduct, which below the age of 14 years is only engaged in case she acted with discernment (see supra no. 28).25 Once the victim of tort proves the damage suffered, the wrongful act of the child and the causal link between them, a rebuttable presumption as to the liability of the parents is triggered (on the basis of art. 1000 (2) CC), asserting the faulty and wrongful non-fulfilment of their parental duties of supervision and education of the minor child living with them and its causal relationship to her wrongful conduct.26 The burden of bringing material evidence against such presumption lies then on the parents (art. 1000 (5) CC).
44
Should the damaging act of the minor child occur during her time as pupil/apprentice, the tortious liability of her teacher/craftsman is then activated, subject to the same conditions of proof by the victim and to the same special defence as for parental liability. In principle, the liability of parents and of the teacher/craftsman may not be cumulated, the latter having a special (derogatory) character in relation to the former. Nevertheless, parental liability continues to function on a subsidiary basis, as a guarantee for the (full) compensation of the victim. b) Vicarious Liability
45
With regard to vicarious liability, Romanian law follows closely the French terminology and regulates in art. 1000 (3) CC the comitent-prepus relationship (corresponding to commettant-préposé in art. 1384 (5) C.civ.). Romanian doctrine and case law agree in defining this vicarious relation (“raport de prepuşenie”) on the basis of a formal subordination of the prepus (agent) to comitent (principal): the latter has a right of direction as to the action of the former, who herself is subject to carrying out obligations. Accordingly, a tortious secondary liability of the comitent for the damaging conduct of the prepus is postulated by law.
46
Although initially seen as a fault-based form of liability (due to a so-called culpa in vigilando), the doctrine evolved towards an objective, guaranteebased approach: the liability of the principal is activated automatically for any tortious act (i.e. an act fulfilling the conditions of liability for the own conduct, 24
25
26
Traditionally, the Civil Code recognized certain priority rights to the father. The Constitution of 13 April 1948 introduced the principle of equality between sexes, which was later confirmed by the Family Code of 1954. Minority ends in principle at the age of 18 (except in case of an early marriage, when it may end sooner) – see art. 8 Decree 31/1954 (fn. 18). Stătescu/Bîrsan (fn. 6) 228 ff.
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stipulated by art. 998–999 CC) of the agent in the exercise of her functions. This is aimed at increasing the chances of the tort victim for full compensation, as she can refer for damages to either or to both of them. The defence of art. 1000 (5) CC does not apply to vicarious liability.27 Romanian authors usually associate vicarious liability with a labour law relationship: the employer is liable for any damaging acts of the employee against third parties in the exercise of her duties under the labour contract. In case of a contract of mandate or agency, vicarious liability is only accepted if the freedom of action of the agent is very limited and subject to close supervision by the principal. The existence of the required subordination relationship has then to be proven on a case by case basis.
47
III. LIABILITY FOR THINGS a) General Conditions
The general principle on liability for things is provided by art. 1000 (1) CC. Accordingly, “a person is liable for the damage caused … by things which are in her custody”. Similar to art. 1384 (1) C.civ., this provision was initially considered as merely an introduction to the particular cases of liability for things regulated in the subsequent articles.
48
But due to the technical evolution registered since the enacting of the Civil Code in 1864 and to the increasing complexity of instruments generally employed in private and economic life, it became increasingly difficult to prove the conditions required by the rules on liability for one’s own conduct (especially the fault of the actor), whereas the specific rules on liability for things (animals and constructions) were too restrictive in order to cover the diversity of practical cases. Therefore, the same as its French counterpart, art. 1000 (1) CC emerged as a secondary general clause (i.e. as a liability basis for damaging actions involving the use of certain things) of subsidiary application (i.e. in relation to which the rules on liability for animals, collapse of constructions, defective products, etc. have a lex specialis character).
49
In assessing the relation of the actor to the things involved in her damaging act, Romanian doctrine differentiates between formal (legal) and material (physical) custody of objects. Liability under art. 1000 (1) CC is in principle only activated in case of a legally ascribed custody. Additionally, the things involved have to play a significant role in the damaging action, otherwise the latter would rather qualify for a tort under art. 998 CC.
50
In its interpretation by the doctrine and the courts, liability for things under art. 1000 (1) CC developed from a subjective (fault-based) towards an objec-
51
27
An exception to this rule is provided for in art. 9 (2) of the Law 11/1991 against unfair competition: the employer is exempted of liability for the damaging conduct of the employee if she proves that, in conformity with practice, she was not able to prevent such wrongful behaviour. For the general context of this Law, see no. 73.
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tive form of liability. In the latter case it was founded on the idea of a presumption of liability28 or on that of guarantee.29 The action in damages of the victim is thus facilitated, as she only has to prove the damage and the causal link between it and the deed of the thing (the so-called fapta lucrului). Being an aggravated form of liability, in comparison to that regulated by art. 998 CC, liability for things allows only for the following defences: force majeure and contributory conduct of the victim or of a third party (see supra no. 37 f.). b) Special Regimes
(i) Animals
52
Liability for animals is regulated by art. 1001 CC. The added-value of this provision, compared to the general principle of art. 1000 (1) CC, is minimal: due to the fact that, for the purposes of tort law, “animal” falls within the scope of the legal concept of “thing”, liability for animals follows in principle the rules mentioned above as to the burden of proof and possible defences. Damage caused by wild animals is not covered by this provision, as it is subject to special regulation.30 (ii) Constructions
53
Contrary to the rule on liability for animals, art. 1002 CC seems to introduce a special regime for the liability for the collapse of constructions, compared to the general rule in art. 1000 (1) CC: this time, it is no longer the custodian who is liable, but just the owner. Such limitation may affect the chances of the victim receiving (full) compensation, even though this provision was initially most probably intended for the protection of the victim. For the rest, the general rules on liability for things apply. (iii) Products
54
Traditionally, liability for products was subject to the general regime established by tort law (especially art. 1000 (1) CC) or contract law provisions of the Civil Code, later complemented by the rules on consumer protection. Recently, the enacting of specific legislation on defective products (for the legislative developments, see infra no. 69) introduced a strict liability regime in this field. Accordingly, in order to hold the producer liable, the injured person is only required to prove the damage, the defect of the product and the causal relationship between defect and damage. Law 240/2004 on liability of producers for damage caused by defective products was mainly aimed at implementing Directive 85/374/EEC31 and thus follows very closely its mandatory provisions. As regards the provisions in the Directive which are still optional (i.e. art. 16 (1) – cap on damages and art. 7 (e) – the development risk clause, DRC), Romanian law provides for the following rules: on the one hand, it does 28 29 30 31
Anghel/Deak/Popa (fn. 9) 204 ff. Eliescu (fn. 7) 371 ff. See Law 407/2006 on Hunting and the Protection of Wild Animals – M.Of. 944/2006. As amended by Directive 1999/34/EC.
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not prescribe any upper limit for the damages32; on the other hand, it regulates the DRC in art. 7 (e) of Law 240/2004. Although setting a special regime for defective products, the said legislation (pursuant to art. 13 of the Directive) does not exclude the possibility of the injured person also bringing claims based on the general contractual or extracontractual liability or on other special liability rules (see art. 9 (1) of Law 240/2004), on an alternative or on a cumulative basis. Nevertheless, independently of the legal ground of the claim, the compensation awarded shall not exceed the damage incurred.
55
3. Object of Tort Liability: Compensation for Damage33 a) General Rules
(i) Functions of the Law of Damages Romanian doctrine associates both a compensative and an educative-preventive function with the law of damages. The former has an a posteriori character in relation to the wrongful conduct and aims at protecting subjective rights and legitimate interests by prescribing the compensation due for their infringement. Correspondingly, the latter has an a priori character and a broader social scope, as tort law sanctions are aimed at encouraging responsible behaviour and the avoidance of infringements against the rights and interests of others. It is to be expected however that the increasing role of civil liability insurance and the decreasing role of traditional fault-based liability will contribute to a decline of the preventive function. Still, punitive damages as a manner of reestablishing it are not (yet) a subject matter in Romanian tort law doctrine or practice.34
56
(ii) Full Compensation and Reduction of Damages Compensation for damage is basically aimed at restoring the victim of tort in the situation she was in before the wrongful act and the resulting harm occurred. As such, the compensation due by the tortfeasor should in principle cover the entire damage suffered by the victim, i.e. the actual damage (damnum emergens) and the lost benefits (lucrum cessans) – art. 1084 CC (see also infra no. 66).
57
In the determination of the amount of compensation, the foreseeability of damage is usually not taken into consideration once the causal relation between the
58
32
33
34
The lower limit was approx. € 60 until 1 January 2007. Since then, the general lower limit provided by the Directive (€ 500) is valid. The term damage (singular) is used in the present contribution to designate the Romanian term prejudiciu or pagubă (i.e. the harm incurred by the victim of tort), whereas damages (plural) refers in principle to the Romanian concept of despăgubiri or daune-interese (i.e. the compensation owed by the tortfeasor to the victim for the harm caused to her). At this point it is interesting to mention that, even though the Civil Code of Québec of 1991, under the influence of common law, regulates punitive damages in art. 1621, the Romanian reform project of 2004 did not take over this institution.
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wrongful conduct and the emerging damage has been established. The same applies for the material situation of the tortfeasor or of the victim: it may at the most lead to a specific method of payment (e.g. periodical payment instead of a lump sum), but not to a reduction of the due compensation.
59
Although the level of fault of the tortfeasor is in principle irrelevant for the level of compensation as the liability is engaged even in case of slight negligence (see supra no. 26), a reduction of compensation comes into question in case of a contributory conduct of the victim, when the amount of damages due by the tortfeasor may be proportionally diminished. (iii) Restoration in Kind and Money Payment
60
Restoration in kind (repararea în natură) is in principle favoured by the current Romanian tort law. Art. 14 of the Criminal Procedure Code (Codul de procedură Penală – CPP) of 1968 (regulating the civil action in damages) provides that only when the restoration in kind is not or no longer possible, should the harm be compensated through damages, i.e. by way of money payment (“repararea prin echivalent”).35 Nevertheless, though theoretically an exception, the latter is the remedy most often encountered in practice. Even in case of restoration in kind, the victim is entitled to damages for lost benefits (art. 14 (3) CPP).
61
Damages may be awarded as a lump sum or as periodical payments (on a temporary or on a lifelong basis). The decision in favour of one of these payment possibilities depends in principle on the type of damage to be covered and on the costs associated with it. In case of periodical payments, the amount of damages may be increased or decreased, in order to adjust it to the (improving or worsening) situation of the victim, as determined by the wrongful act.36 But even in case of a lump sum payment, if the harm consisted of a bodily injury and if the situation of the victim subsequently worsens, the damages may be increased. In neither case may the res judicata authority of the initial judgment be relied upon (see infra no. 79). b) Compensation for Pecuniary and Non-Pecuniary Losses
(i) Pecuniary Losses
62
Pecuniary losses occur when assets or financial interests of the tort victim are damaged. The concerned interests may be of a legal or of a contractual origin. As Romanian tort law provides for compensation for both the emerging damage and the lost benefits (see supra no. 57), the possibility of covering pure economic losses is not disputed. In this respect Romanian law follows in principle the French approach.37 35
36
37
Upon its formation, this approach was partially based on the ideological stance during communism against the idea of compensation through money payment. Before communism, restoration in kind was only an exception – see also Eliescu (fn. 7) 448 ff. Periodical damages as such are usually seen as having a provisory character – Stătescu/Bîrsan (fn. 6) 171. C. Radé/L. Bloch, Compensation for Pure Economic Loss under French Law, in: W.H. van Boom/H. Koziol/Ch.A. Witting (eds.), Pure Economic Loss (2004) 41 ff.
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(ii) Non-Pecuniary Losses The idea of compensating non-pecuniary losses (e.g. harms to the health and body of the victim or to her personality, beyond any associated financial interests) through specific, so-called moral damages has had a long and non-linear evolution in Romanian doctrine and case law. Initially (i.e. before the communist re-interpretation of Romanian private law), the possibility of granting moral damages was generally accepted, on the basis of the general terminology employed in art. 998–999 CC: any harm had to be compensated, including thus moral harm.38
63
During communism, moral damages were perceived as a recognition of the autonomous significance of human personality and consequently rejected: they did not fit in the official ideology, according to which individual values were only worth protecting if they served some ultimate goal of the state.39 Alternative sanctions were created, requiring the tortfeasor to pay a fine to the state for non-pecuniary harm caused to others. Still, this approach changed progressively up to the fall of the communist regime in 1989, partially allowing for specific damages in case of infringement of human health or physical integrity.40 At present, the legal literature and practice is re-establishing the continuity with the traditional Romanian civil law and acknowledging the role of moral damages in a modern tort law system.41
64
This latest change of direction is not independent of Romania’s membership in the Council of Europe since 1993 and of its subsequent ratification of the European Convention of Human Rights (ECHR) in 1994.42 The recognition of moral damages in the case law of the European Court of Human Rights (on the basis of art. 5 (5) and art. 41 ECHR) and the monistic approach of contemporary Romanian constitutional law as to the priority of the international law of human rights towards national legal provisions (see art. 20 (2) in relation to art. 11 (2) of the Romanian Constitution) led the internal court practice to reconsider its former sceptical stance towards granting moral damages for nonpecuniary losses.
65
38
39
40
41
42
See for instance Cantacuzino (fn. 11) 433 or D. Alexandresco, Principiile dreptului civil român, vol. III (1926) 128 f. Representative in this sense is the decision VII from 29 December 1952 of the Supreme Court, stating that only labour is a legitimate source of income, not the “unjust enrichment” by way of moral damages – see C. Turianu, Răspunderea civilă pentru dauna morală, Dreptul no. 4/1993, 17 ff. This reconsideration was determined to a certain extent by the publication in 1979 of a study partially questioning the restrictive case law of the time: I. Albu/V. Ursa, Răspunderea civilă pentru daunele morale (1979) – see also the generally positive review by H. Smith, The International and Comparative Law Quarterly, Vol. 29, No. 2/3 (April–July) 1980, 535 f. A few books were published on this issue in recent years: I. Urs, Repararea daunelor morale (2001); C. Jugastru, Repararea prejudiciilor nepatrimoniale (2001); Gh. Vintilă/C. Furtună, Daunele morale. Studiu de doctrină şi jurisprudenţă (2002) etc. See Law 30 of 18 May 1994, M.Of. 135/1994.
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B. LEGISLATION43 1. Civil Code and Civil Procedure Code
66
As mentioned in the beginning (see supra no. 2 f.), the Romanian Civil Code (CC)44 is mainly based on the French Code (C.civ.) of 1804 and the Italian Code (IC) of 1865. Romanian tort law provisions are a close reflection of these models – see Comparative Table, p. 540 ff. Accordingly, the following correspondence may be noticed: art. 998–999 CC – art. 1382–1383 C.civ./ art. 1151–1152 IC (fault liability), art. 1000 CC – art. 1384 C.civ./art. 1153 IC (liability for others and for things), art. 1001 CC – art. 1385 C.civ./art. 1154 IC (liability for animals), art. 1002 CC – art. 1386 C.civ./art. 1155 IC (liability for collapse of constructions), art. 1003 CC – art. 1156 IC (joint liability). These main rules are usually completed with the provisions on compensation for damage (art. 1084–1086 CC – art. 1149–1151 C.civ./art. 1227–1229 IC), basically intended for contractual liability, but applied also in cases of tort liability on a complementary basis.
67
The burden of proof is in principle regulated by the Civil Code (art. 1169 ff.) too. These provisions are completed by those of the Civil Procedure Code45 (CPC) on the administration of evidence (art. 167 ff.). The CPC also establishes the rules on the competent jurisdiction for civil actions, including in tort litigation (art. 1 ff.); these rules have to be correlated with those of the Criminal Procedure Code on the joint exercise of the criminal and civil action (see infra no. 77). 2. Private International Law
68
The Law 105/199246 on the regulation of private international law matters includes special sections on tort liability (sec. VIII–XI). The general rule is that of lex loci delicti commissi (art. 107). Where the damage occurs partially or totally in another state, the law of that state governs the corresponding compensation rules (art. 108). But independently of any cross border effects, the safety and conduct standards of the state where the tort was committed have to be observed (art. 110). Apart from these general provisions, specific rules on the conflict of laws are provided for tort liability arising from infringement of personality rights (art. 112–113), defective products (art. 114–116), unfair competition (art. 117–119), as well as accidents in water and air navigation (art. 139 ff.). 3. Product Liability
69
The current regime of strict liability for defective products is established by Law 240/200447 (see also supra no. 54 f.). The legislative evolution in this field 43 44 45 46
47
Romanian legislation is available online under: www.cdep.ro/pls/legis/legis_pck.frame. Law-Decree no. 1655/1864, M.Of. 271/1864. Decree of 11 September 1865, republished (rep.) M.Of. 45/1948. M.Of. 245/1992. For a systemic presentation in German language, see O. Căpăţână, Das neue rumänische Internationale Privatrecht, RabelsZ 58 (1994) 465 ff. M.Of. 552/2004.
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was quite contradictory. A first attempt to regulate a special strict liability regime for products was made through the Governmental Ordinance 87/200048, which came into force in September 2001. In December 2001 Law 37/200249 was passed by the Romanian Parliament, abrogating the said ordinance and integrating a few core rules on product liability in the Governmental Ordinance 21/199250 on consumer protection, thus trying to unify these two legal fields in the same act. Nevertheless, due to several shortcomings from the point of view of the implementation of the corresponding EU acquis, it was subsequently decided to come back to an autonomous regime for product liability through the Law 240/2004.51 4. Environmental Law and Nuclear Damage The liability for damage caused to the environment is regulated by the Emergency Ordinance (EO) 195/200552, repealing Law 137/199553 on the protection of the environment. Art. 95 (1) of the said ordinance, corresponding to art. 81 of Law 137/1995, provides for the rule of objective liability, independent of fault, for environmental damage. Contrary to the previous regulation, art. 95 (2) now allows for an exception from this rule in case of damage to protected species and natural habitats, when the norms on subjective liability may apply.
70
In December 2001 Law 70354 on civil liability for nuclear damage was adopted, in order to adapt Romanian law to European and international standards (especially to the corresponding Vienna Convention of 21 May 1963, ratified by Romania through Law 106/199255). Art. 4 of Law 703/2001 provides for the objective and exclusive liability of the operator of a nuclear installation for any nuclear damage caused in its installation or involving nuclear material originating in or sent to that installation.
71
5. Insurance Law The main acts regulating insurance in Romania are Law 136/199556 on insurance and reinsurance and Law 32/200057 on insurance companies and in48 49 50
51
52 53 54 55 56
57
M.Of. 421/2000. M.Of. 91/2002. M.Of. 212/1992, rep. M.Of. 75/1994. This Act had already been modified in a first stage by Governmental Ordinance 58/2000 (M.Of. 43/2000), in order to implement Directive 92/59/ EEC on general product safety (meanwhile repealed by Directive 2001/95/EC). This latter regulation is itself not free of errors: according to its art. 2 (1) a) point 4 (aiming at implementing art. 3 (2) of Directive 85/374/EEC), “any person who imports a good from the European Community for sale … in the course of her business shall be … liable the same as the producer”. This provision has been in force in this form since 1 January 2007 and apparently leads to a liability-free regime for products imported from third countries. M.Of. 1196/2005, rep. M.Of. 88/2006. M.Of. 304/1995, rep. M.Of. 70/2000. M.Of. 818/2001, rep. M.Of. 115/2002. M.Of. 258/1992. M.Of. 303/1995. Law 136/1995 was substantially modified by Law 172/2004 (M.Of. 473/2004) and by Governmental Ordinance 61/2005 (M.Of. 562/2005) in order to adapt it to EU directives on insurance law. M.Of. 148/2000.
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surance supervision. Law 136/1995 differentiates between life insurance and general (optional or mandatory) insurance. According to art. 41 (regulating civil liability insurance), the insurer shall pay an indemnity for the damage for which the insured person is held accountable by law (i.e. by effect of her tort liability for own conduct, for others or for things), as well as for the costs of the insured person in the civil suit. The indemnity shall be paid directly to the injured person (or to the insured person, if she has already compensated the damage caused). A mandatory civil liability insurance is prescribed by art. 48 ff. for owners of motor vehicles (in case of car accidents) and by art. 591 ff. (newly introduced by Law 172/200658) for physicians, pharmacists and medical assistants in the exercise of their profession. 6. Unfair Competition
73
After the fall of communism, Law 11/199159 on unfair competition was the first step of the Romanian legislature in the regulation of competition in the new market-oriented economy. This Law establishes a special field of tort liability, to which the general rules of the Civil Code apply on a complementary basis. Art. 2 incriminates as wrongful any act or conduct contrary to fair practices in industrial or commercial activity, in the execution of works or provision of services. Such an act engages in principle the civil liability of the tortfeasor. Special cases of contravening or criminal liability are expressly provided by art. 4 and 5. But even in the latter cases, the injured person may file a civil action in damage, for compensation of any material or moral damage suffered (art. 9), within a special prescription term of basically one year (art. 12). 7. Constitutional and Administrative Law
74
The Romanian post-communist Constitution60 (RC) was adopted in 1991 and then reformed in 2003. Art. 52 RC (formerly art. 48) deals with the protection of the person whose rights or legitimate interests are infringed by a public authority by means of an administrative act or by the failure to process her application within the legally provided time limit. Any such person is entitled to acknowledgement of her rights/interests, cancellation of the said act and compensation for the damage suffered (art. 52 (1) RC). Pursuant to art. 52 (2) RC, the procedure to be followed is provided in detail by Law 554/200461 on administrative litigation. This liability of public authorities towards injured persons is a form of objective tort liability of the state.
75
Another form is regulated by art. 52 (3) RC, according to which the state shall be held liable for any damage (of material or moral nature) caused as a result of judicial errors. It does not exclude the liability of magistrates who act in bad 58 59
60 61
M.Of. 436/2006. M.Of. 24/1991. Substantial changes were brought by Law 298/2001 (M.Of. 313/2001). Other issues of competition law (i.e. antitrust, control of concentrations, supervision procedure etc.) are separately regulated by Law 21/1996 (M.Of. 88/1996, rep. M.Of. 742/2005). M.Of. 233/1991, rep. M.Of. 767/2003. M.Of. 1154/2004. Previously, the administrative litigation was regulated by Law 29/1990 (M.Of. 122/1990).
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faith or with gross negligence. The general rules on tort liability (especially those on vicarious liability) apply in principle on a subsidiary basis (see infra no. 96 f.). 8. Criminal Law and Procedure The Criminal Code62 (Codul Penal – CP) and Criminal Procedure Code63 (Codul de Procedură Penală – CPP) were adopted in 1968, but underwent substantial revision after the fall of communism. They also include relevant tort law provisions. The CP defines in art. 19 the different levels of fault and in art. 4464 and 45 certain defences against the wrongful character of the conduct (self-defence and necessity respectively).
76
Art. 14 ff. CPP provides for a set of rules concerning the exercise of the civil action in cases of criminal offences which end up in damages. A final decision in a criminal law case is legally binding for the court dealing with the civil action as to the wrongful conduct, the actor and her fault.65 A previous civil law decision is not binding for the criminal court as to the same aspects (art. 22 CPP). Of importance from the tort law perspective are also art. 504 ff. CPP, which apply the constitutional principle of state liability for damage resulting from judicial errors to criminal law cases.66
77
C. CASE LAW In the following, a series of decisions of the Romanian High Court of Cassation and Justice67 (the Court) on characteristic tort law issues are presented. The aim is not to give a comprehensive overview of its relevant case law, but rather to see how some of the theoretical and legislative aspects already outlined in the preceding parts of this contribution were reflected in the Court’s practice. Many of the decisions quoted below were subject to comments in national legal journals and civil law treaties, being thus representative for the general state of discussion in Romanian tort law.68
62 63 64 65
66
67
68
Law 15/1968 (rep. M.Of. 65/1997). Law 29/1968 (rep. M.Of. 78/1997). As modified by Law 169/2002 (M.Of. 261/2002). Still, where the acquittal in a criminal case is due to the lack of the required fault level (e.g. the conduct of the actor was just negligent without being intentional), the victim may nonetheless be entitled to civil damages (see also no. 27). It is worth mentioning that this principle was initially (i.e. until the reform of 2003) provided by the Constitution only for errors in criminal law matters. Subsequently, it was extended to cover all legal fields, as a means of fostering the accountability of the justice system. Its official name was “Înalta Curte de Casaţie şi Justiţie” (ICCJ) between 1862–1949, “Curtea Supremă” (CS) between 1949–1952, “Tribunalul Suprem” (TS) between 1952–1990, “Curtea Supremă de Justiţie” (CSJ) between 1990–2003, being again changed into the traditional designation of “Înalta Curte de Casaţie şi Justiţie” in 2003. Commencing from 2002, the decisions of the Supreme Court are available on its website: www. scj.ro/jurisprudenta.asp.
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1. Principle of Full Compensation
79
The principle of full compensation may be seen as the leading rule in the case law of the Court. In its application, it takes different forms, depending on the circumstances of the case. So it was decided that if new losses (out of the same tortious behaviour) emerge after a final court decision setting the damages to be paid, the injured person is entitled to a new civil action in damages, so that her losses are in the end entirely covered. The tortfeasor may not rely on the res judicata authority of the initial decision.69
80
In order to assess the periodical damages due by the tortfeasor to the minor children of the victim, the estimated amount of the wage that she would have normally received at the date of the court decision and not the monthly average of the wage she received before her death should be taken into account.70 Additionally, attention should be paid to the fact that the previous parental support for the children was not limited to pecuniary contributions. The amount of the damages shall depend on the damage caused (to be compensated in full), and not on the financial situation of the tortfeasor or of the victim.71
81
The rule of art. 1088 (1) CC (corresponding to art. 1153 (1) C.civ.), according to which damages due for the delay in performance of an obligation to pay a certain sum should only consist in awarding interest at the statutory rate, is meant primarily for contract law. This provision may not preclude higher damages in tort law, as the latter is characterized by the principle of full compensation (including damnum emergens and lucrum cessans), to be assessed in judicial proceedings. Statutory and judicial compensation may not be cumulated (bis eadem dicere ridiculum est).72
82
Whenever it is possible, restoration in kind has priority over pecuniary damages (pursuant also to art. 14 CPP).73 The preference given to restoration in kind is also seen as a consequence of the principle of full compensation. 2. Moral Damages
83
Another consequence of the principle of full compensation is the possibility of granting moral damages to victims of tort.74 Both a natural and a legal person may claim such damages.75 In order to be entitled to moral damages, the injured person has to bring evidence as to the specific non-pecuniary loss caused by the wrongful action of the tortfeasor.76 Nevertheless, due to its nature, such 69 70
71
72 73
74 75 76
CSJ, civil section (civ. sec.), Decision (D) 2013/1991 – Dreptul 8/1992. CSJ, criminal section (crim. sec.), D 224/1994 – Dreptul 12/1994, 73; CSJ, crim. sec., D 1146/1992 – Dreptul 12/1992, 8. CSJ, civ. sec., D 747/1992 – Dreptul 2/1993, 75 f.; CSJ, civ. sec., D 1720/1992 – Dreptul 6/1992, 88. ICCJ, civ. sec., D 5361/2004 – Pandectele Române (PR) 3/2005. CSJ, crim. sec., D 2171/1992 – Dreptul 7/1993, 96; CSJ, crim. sec., D 1087/1993 – Dreptul 10–11/1994, 119. CSJ, civ. sec., D 5437/2003. CSJ, civ. sec., D 1608/2001 – Dreptul 4/2002, 240. CSJ, crim. sec., D 23/2002 – Dreptul 2/2004, 211.
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loss does not have to be exactly quantified and certified (as required for pecuniary losses), the judge having a certain margin of discretion.77 In cases of criminal offences, the provocation of the tortfeasor by the victim has not been assessed in a uniform way. In a first decision, provocation was one of the reasons for not granting moral damages to the injured person.78 In later cases, moral damages were recognized; still, as a form of contributory conduct, provocation may lead to their reduction.79
84
The fact that the physical injuries suffered by the victim healed after the medical treatment does not preclude her being granted moral damages. The non-pecuniary loss is to be interpreted in a comprehensive sense, to include physical and emotional pain preventing the injured person from actively taking part in professional, social and family life.80
85
Moral damages play an increasing role in cases of press delicts. The Court held that freedom of expression, though established in art. 30 (1) of the Constitution, may not be exercised in such a way as to damage the dignity, honour and private life of another person.81 At the same time, quoting the case law of the European Court for Human Rights, the Court affirmed that politicians and dignitaries have to allow for a higher degree of transparency in their activity than private persons. Accordingly, claims for moral damages by a secretary of state against authors of a press report were rejected.82
86
3. Liability for Children The liability of parents has to be assessed not only on the basis of their duty of supervision in art. 1000 (2) CC, but also on the basis of their general duty of education of their children, according to art. 101 Family Code. Therefore, the liability of the teacher, as provided for in art. 1000 (4) CC, shall not exempt the parents of their own liability for the damage caused by the child while at school. Accordingly, the liability shall be proportionally divided among them.83
87
The obligation of the parents to compensate the victim of their child’s tort shall not cease when the child reaches the age of majority, as this is not expressly provided for by any norm of positive law.84
88
In case of parents’ divorce, liability for the damage caused by the child is borne in principle by the parent entrusted with the care and education of the child.85 Nevertheless, liability of the parents shall not be assessed on a purely formal
89
77 78 79 80 81 82 83 84 85
ICCJ, civ. sec., D 8002/2005. CSJ, crim. sec., D 492/1998 – Dreptul 7/1999. CSJ, crim. sec., D 2562/2002 – Dreptul 2/2004, 211; D 2554/2001 – Dreptul 12/2002, 240. CSJ, crim. sec., D 1387/2002 – Dreptul 7/2003, 220. CSJ, civ. sec., D 62/2001 – Dreptul 4/2002, 240. CSJ, civ. sec., D 5435/2001 – Dreptul 2/2003, 249. TS, civ. sec., D 2692/1987 – Revista Română de Drept (RRD) 9/1988, 75. TS, civ. sec., D 431/1985 – RRD 1/1986, 72. TS, crim. sec., D 519/1988 – RRD 9/1988, 74.
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criterion (the duties prescribed by the divorce act), but also in function of their actual contribution to the upbringing of the child after the divorce.86 4. Vicarious Liability
90
In cases of vicarious relationships, the Court decided that, in order for the liability of the principal to be engaged, the injured person has to prove the existence of the conditions for the liability of the agent for her conduct, as required by art. 998–999 CC (i.e. damage, wrongfulness, causation and fault). Additionally, a close (literally “causal”) relation has to be present between the function fulfilled by the agent (as assigned to her by the principal) and the wrongful deed.87
91
Romanian private law traditionally distinguishes between civil and commercial operations, the latter being reserved to business entities. But even if the injured person and the principal are business companies, their relationship resulting from the damage caused by the agent through a car accident falls under the rules of tort law (vicarious liability), not commercial law. The presumption established by art. 4 Commercial Code, according to which all acts of a business entity are of a commercial nature, is reversed by the purely civil law nature of tort.88
92
Vicarious liability is seen by the Court as a legal guarantee for the (full) compensation of the injured person. The latter is however free to file an action in damages both against the agent for her own conduct and against the principal for the agent’s conduct, in which case they are jointly liable. The principal then has a recourse claim against the agent.89 In case of a joint and several liability of two agents for their tortious conduct (art. 1003 CC), the corresponding principals shall also be liable for the damage caused (pursuant to art. 1000 (3) CC), but only in proportion of the fault of their respective agents.90 5. Liability for Things
93
Under “things which are in someone’s custody” may be understood any movable or immovable good, whether in motion or not, including electricity. At the same time, “custody” refers to legal custody, which in principle is assigned to the owner, who has the right and the duty of control over the respective good.91 Should the owner transfer legal custody by way of contract, the contractual partner incurs liability for the good. Where only material custody over the thing is transferred (e.g. in the context of a vicarious relationship), the owner remains liable for the damage caused by the thing. If the thing is stolen, the owner is exempted from such liability.92 86 87 88 89 90 91 92
TS, civ. sec., D 693/1988 – RRD 1/1989, 72; TS, crim. sec., D 2154/1983 – RRD 7/1984, 66. CSJ, civ. sec., D 3649/2002; TS, civ. sec., D 114/1989 – Dreptul 3/1990, 69 ff. CSJ, civ. sec., D 4028/1999 – Dreptul 12/2000, 141. TS, civ. sec., D 392/1981. CSJ, crim. sec., D 1121/1990 – Dreptul 2/1992, 83. CSJ, civ. sec., D 2725/2003 – Dreptul 7/2004, 252. TS, civ. sec., D 528/1982 – RRD 3/1983, 67.
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According to constant case law of the Court, legal custody triggers a presumption of liability of the custodian for the damage caused by the things under her control.93 Such presumption may in principle only be reversed for cases of force majeure or contributory conduct (see supra no. 51). Where the contributory conduct (of the victim or of a third party) itself does not amount to force majeure, it leads to a proportional reduction of liability, rather than exoneration.94
94
Should the thing be a building and should it cause damage to another by virtue of its defective construction, the owner is objectively (i.e. independently of her fault) liable for such damage, pursuant to art. 1002 CC. The injured person is only required to prove the loss suffered, the defective construction and the causal link between them.95
95
6. State Liability for Judicial Errors Most cases of state liability for judicial errors concern criminal law matters, especially claims for moral damages as a result of unlawful prosecution and/or condemnation. The specific provisions regulating this issue (i.e. art. 504 CPP in relation to art. 52 (3) of the Constitution – see supra no. 75 and 77) are, on a regular basis, supplemented with references to the general clause of the Civil Code on liability for damage (art. 998–999 CC).96
96
Nevertheless in a recent decision the Court departed from its constant case law, stating that liability of the state for judicial errors in criminal proceedings may not be assessed on the basis of the general tort law provisions of the Civil Code. Accordingly, the state may be held accountable only pursuant to art. 504 CPP in relation to art. 52 (3) of the Constitution. Insofar, the provision of the CPP was not a particular application of the general clause of tort, but a specific (direct) form of liability, expressly regulated by law. Should the said principles of the Civil Code be of general application, “state liability would threaten to become unlimited and unconditional”.97 This new approach is rather questionable, as the basic regulation in the Civil Code is designed to function as a common law (i.e. of subsidiary application) of tortious liability.
97
93 94 95 96
97
TS, civ. sec., D 1300/1987 – RRD 4/1988, 75. TS, civ. sec., D 277/1973 – RRD 5/1975, 67. ICCJ, civ. sec., D 5636/2005. ICCJ, civ. sec., D 8002/2005; ICCJ, civ. sec., D 5216/2004; CSJ, civ. sec., D 2191/1999 – Dreptul 8/2000; CSJ, civ. sec., D 1211/1992 – Dreptul 7/1993. ICCJ, civ. sec., D 422/2006.
Liability for Others & Things
Intention & Negligence
General Clause
Art. 1152. Ognuno è responsabile del danno che ha cagionato non solamente per un fatto proprio, ma anche per propria negligenza od imprudenza. Art. 1153. - (1) Ciascuno parimente e obbligato non solo pel danno che cagiona per fatto proprio, ma anche per quello che viene arrecato col fatto delle persone delle quali deve rispondere, o delle cose che ha in custodia.
Art. 1383. Chacun est responsable du dommage qu’il a causé non seulement par son fait, mais encore par sa négligence ou par son imprudence. Art. 1384. - (1) On est responsable non seulement du dommage que l’on cause par son propre fait, mais encore de celui qui est causé par le fait des personnes dont on doit répondre, ou des choses que l’on a sous sa garde.
Art. 999. Omul este responsabil nu numai de prejudiciul ce a cauzat prin fapta sa, dar şi de acela ce a cauzat prin neglijenţa sau prin imprudenţa sa. Art. 1000. - (1) Suntem asemenea responsabili de prejudiciul cauzat prin fapta persoanelor pentru care suntem obligati a rãspunde sau de lucrurile ce sunt sub paza noastrã.
Art. 999. Everyone is liable for the damage she causes not only by her intentional act, but also by her negligent conduct or by her imprudence.
Art. 1000. - (1) A person is equally liable for the damage caused by the acts of persons for whom she is responsible or by things which are in her custody.
Art. 1151. Qualunque fatto dell’uomo che arreca danno ad altri, obbliga quello per colpa del quale è avvenuto, a risarcire il danno.
Art. 1382. Tout fait quelconque de l’homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé, à le réparer.
Art. 998. Orice faptă a omului, care cauzeazã altuia prejudiciu, obligă pe acela din a cărui greşeală s-a ocazionat, a-l repara.
ITALIAN CODICE CIVILE (1865) Dei delitti e dei quasi-delitti
FRENCH CODE CIVIL (1804) Des délits et des quasi-délits
Despre delicte si cvasi-delicte
ROMANIAN CODUL CIVIL (1864) Of intentional and unintentional wrongs Art. 998. Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it.
COMPARATIVE TABLE:
540 Ionut Raduletu
Despre delicte si cvasi-delicte
Art. 1000. - (2) Tatăl şi mama ... sunt responsabili de prejudiciul cauzat de copiii lor minori ce locuiesc cu dânşii.
ROMANIAN CODUL CIVIL (1864) Of intentional and unintentional wrongs
Liability for Children
Art. 1000. - (2) The father and mother are liable for the damage caused by their minor children who live with them.
Art. 1384. - (2) Toutefois, celui qui détient, à un titre quelconque, tout ou partie de l’immeuble ou des biens mobiliers dans lesquelles un incendie a pris naissance ne sera responsable, vis-à-vis des tiers, des dommages causés par cet incendie que s’il est prouvé qu’il doit être attribué à sa faute ou à la faute des personnes dont il est responsable. Art. 1384. - (3) Cette disposition ne s’applique pas aux rapports entre propriétaires et locataires, qui demeurent régis par les articles 1733 et 1734 du code civil. Art. 1384. - (4) Le père et la mère, en tant qu’ils exercent l’autorité parentale, sont solidairement responsable du dommage causé par leurs enfants mineurs habitant avec eux.
FRENCH CODE CIVIL (1804) Des délits et des quasi-délits
Art. 1153. - (2) Il padre e in sua mancanza la madre sono obbligati per danni cagionati dai loro figli minori abitanti con essi.
ITALIAN CODICE CIVILE (1865) Dei delitti e dei quasi-delitti
Romania 541
Vicarious Liability
Liability for Pupils
Defences
Art. 1000. - (3) Masters and employers, for the damage caused by their servants and employees in the functions for which they have been employed. Art. 1000. - (4) Teachers and craftsmen, for the damage caused by their pupils and apprentices during the time when they are under their supervision. Art. 1000. - (5) The father and mother, teachers and craftsmen are not liable for the damage referred to above, if they prove that they could not prevent the damaging act.
ROMANIAN CODUL CIVIL (1864) Of intentional and unintentional wrongs
Art. 1153. - (5) I precettori e gli artigiani pei danni cagionati dai loro allievi ed apprendenti nel tempo in cui sono sotto la loro vigilanza. Art. 1153. - (6) La detta responsabilità non ha luogo, allorchè i genitori, i tutori, i precetori e gli artigiani provano di non avere potuto impedire il fatto di cui dovrebbero essere responsabili.
Art. 1384. - (5) Les maîtres et les commettants, du dommage causé par leurs domestiques et préposés dans les fonctions auxquelles ils les ont employés. Art. 1384. - (6) Les instituteurs et les artisans, du dommage causé par leurs élèves et apprentis pendant le temps qu’ils sont sous leur surveillance. Art. 1384. - (7) La responsabilité ci-dessus a lieu, à moins que les père et mère et les artisans ne preuvent qu’ils n’ont pu empêcher le fait qui donne lieu a cette responsabilité.
Art. 1000. - (3) Stăpânii şi comitenţii, de prejudiciul cauzat de servitorii şi prepuşii lor în funcţiile ce li s-au încredinţat. Art. 1000. - (4) Institutorii şi artizanii, de prejudiciul cauzat de elevii şi ucenicii lor, în tot timpul ce se găsesc sub a lor priveghere. Art. 1000. - (5) Tatăl şi mama, institutorii şi artizanii sunt apăraţi de responsabilitatea arătată mai sus, dacă probează că n-a putut împiedica faptul prejudiciabil.
Art. 1153. - (3) I tutori pei danni cagionati dai loro amministrati abitanti con essi. Art. 1153. - (4) I padroni e i committenti pei danni cagionati dai loro domestici e commessi nell’esrcizio delle incombenze alle quali li hanno destinati.
ITALIAN CODICE CIVILE (1865) Dei delitti e dei quasi-delitti
FRENCH CODE CIVIL (1804) Des délits et des quasi-délits
Despre delicte si cvasi-delicte
542 Ionut Raduletu
Liability for Animals
Liability for Constructions
Joint Liability
Art. 1001. The owner of an animal, or the person using it, during the period of usage, is liable for the damage the animal has caused, whether the animal was under her custody, or whether it had escaped. Art. 1002. The owner of a building is liable for the damage caused by its collapse, where it happens as a result of lack of maintenance or of a defect in its construction. Art. 1003. Where the intentional or unintentional wrong is attributed to more persons, they are jointly and severally liable for its compensation.
ROMANIAN CODUL CIVIL (1864) Of intentional and unintentional wrongs
FRENCH CODE CIVIL (1804) Des délits et des quasi-délits
Art. 1384. - (8) En ce qui concerne les instituteurs, les fautes, imprudences ou négligences invoquées contre eux comme ayant causé le fait dommageable, devront être prouvées, conformément au droit commun, par le demandeur, à l’instance. Art. 1385. Le propriétaire d’un Art. 1001. Proprietarul unui animal, ou celui qui s’en sert, animal, sau acela care se pendant qu’il est à son usage, serveşte cu dânsul, în cursul serviciului, este responsabil de est responsable du dommage que l’animal a causé, soit que prejudiciul cauzat de animal, sau că animalul se află sub paza l’animal fût sous sa garde, soit qu’il fût égaré ou échappé. sa, sau că a scăpat. Art. 1386. Le propriétaire d’un Art. 1002. Proprietarul unui edificiu este responsabil pentru bâtiment est responsable du dommage causé par sa ruine, prejudiciul cauzat prin ruina lorsqu’elle est arrivée par une edificiului, când ruina este urmarea lipsei de întreţinere sau a suite du défaut d’entretien ou par le vice de sa construction. unui viciu de construcţie. Art. 1003. Când delictul sau cvasi-delictul este imputabil mai multor persoane, aceste persoane sunt ţinute solidar pentru despăgubire.
Despre delicte si cvasi-delicte
Art. 1154. Il proprietario di un animale o chi se ne serve, pel tempo in cui se ne serve, è obbligato pel danno cagionato da esso, tanto se si trovi sotto la sua custodia, quanto se siasi smaritto o sia fuggito. Art. 1155. Il proprietario di un edifizio è obbligato pe’danni cagionati dalla rovina di esso, quando sia avvenuta per mancanza di riparazione o per un vizio della construzione. Art. 1156. Se il delitto o quasi-delitto è imputabile a più persone, queste sono tenute in solido al risarcimento del danno cagionato.
ITALIAN CODICE CIVILE (1865) Dei delitti e dei quasi-delitti
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D. LITERATURE 1. Monographic Studies I. Albu, Repararea prejudiciului cauzat prin vătămări corporale (Bucharest 1997) I. Albu/V. Ursa, Răspunderea civilă pentru daunele morale (Cluj-Napoca 1979) I.M. Anghel/F. Deak/M.F. Popa, Răspunderea civilă (Bucharest 1970) R. Baciu, Răspunderea civilă delictuală pentru prejudiciile cauzate de fapta lucrului (Bucharest 2000) L. Barac, Răspunderea şi sancţiunea juridică (Bucharest 1997) A. Corhan, Repararea prejudiciului prin echivalent bănesc (Bucharest 1999) M. Eliescu, Răspunderea civilă delictuală (Bucharest 1972) N.D. Ghimpa, Responsabilitatea civilă delictuală şi contractuală. Studiu de doctrină şi jurisprudenţă (Bucharest 1946) C. Jugastru, Repararea prejudiciilor nepatrimoniale (Bucharest 2001) I.R. Kraft, Der Angleichungsstand der EG-Produkthaftung. Eine vergleichende Untersuchung am Beispiel der Rechtslage in Deutschland, Frankreich, Spanien und Rumänien (Berlin 2004) E. Lipcanu, Răspunderea comitentului pentru fapta prepusului. Probleme actuale privind răspunderea civilă prevăzută în art. 1000 (3) Cod civil (Bucharest 1999) M. Pătrăuş, Răspunderea civilă pentru dauna ecologică (Bucharest 2005) I.-D. Romoşan, Vinovăţia în dreptul civil român (Bucharest 1999) O. Sachelarie, Responsabilitatea pentru fapte ilicite în Codul civil din 1940 (Bucharest 1941) C. Stătescu, Răspunderea civilă delictuală pentru fapta altei persoane (Bucharest 1984) I. Stoenescu, Evoluţia ideii de răspundere civilă. Pedeapsă, culpă, risc, asigurare (Bucharest 1944) C. Teleagă, Armonizarea legislativă cu dreptul comunitar în domeniul dreptului civil. Cazul răspunderii pentru produsele defectuoase (Bucharest 2004) Gh. Tomşa, Răspunderea civilă pentru prejudiciile cauzate de lucrurile pe care le avem sub pază (Bucharest 1980) C.T. Ungureanu, Drept internaţional privat. Protecţia consumatorilor şi răspunderea pentru produsele nocive (Bucharest 1999) I. Urs, Repararea daunelor morale (Bucharest 2001) G. Vintilă/C. Furtună, Daunele morale. Studiu de doctrină şi jurisprudenţă (Bucharest 2002) A.-V. Voicu, Răspunderea civilă delictuală. Cu privire specială la activitatea sportivă (Bucharest 1999)
2. Contributions in Civil Law Treaties D. Alexandresco, Principiile dreptului civil român, vol. III (Bucharest 1926) 116 ff. M.B. Cantacuzino, Elementele dreptului civil (Bucharest 1921) 424 ff. I. Dogaru (ed.), Drept civil. Idei producătoare de efecte juridice (Bucharest 2002) 590 ff. I.P. Filipescu/A.I. Filipescu, Drept civil. Teoria generală a obligaţiilor (Bucharest 2004) 128 ff. C. Hamangiu/I. Rosetti Bălănescu/Al. Băicoianu, Tratat de drept civil român, vol. II (Bucharest 1929) 755 ff. L. Pop, Drept civil român. Teoria generală a obligaţiilor (Bucharest 1998) 161 ff. T.R. Popescu/P. Anca, Teoria generală a obligaţiilor (Bucharest 1968) 160 ff. C. Stătescu/C. Bîrsan, Drept civil. Teoria generală a obligaţiilor (Bucharest 2002) 133 ff.
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3. Articles in Law Journals I. Albu, Consideraţii în legătură cu revenirea jurisprudenţei române la practica reparării băneşti a daunelor morale, Dreptul no. 8/1996 I. Bălan, Răspunderea civilă pentru produsele cu defecte în reglementarea legii 240/2004, Dreptul no. 12/2004 St. Beligrădeanu, Răspunderea civilă a medicilor şi a unităţilor sanitare, Dreptul no. 3/1990 M. Boar, Metode şi criterii de evaluare a despăgubirilor băneşti pentru daune morale, Dreptul no. 10/1996 T. Bodoaşcă, Discuţii privitoare la sfera de aplicare a art. 1000 alin. 1 (teza întâi) din Codul civil, Dreptul no. 10/2006 M. Duţu, Răspunderea civilă pentru pagubele nucleare, Dreptul no. 10–11/1993 M. Duţu, Legea protecţiei mediului, Dreptul no. 5/1996 G.C. Frenţiu, Răspunderea organizatorului activităţilor sportive, Dreptul no. 3/2002 R. Gheorghiu-Testa/S. Radocea, Romania, The International Comparative Legal Guide to Product Liability 2006, Chapter 34 (London 2006) I. Leş, Statul de drept şi răspunderea civilă a judecătorilor, Dreptul no. 5/1997 Leş I., Răspunderea juridică a notarilor publici, Dreptul no. 9/1997 I. Lulă, Garanţia, fundamentul răspunderii civile a comitentului, Dreptul no. 10– 11/1995 I. Lulă, Observaţii asupra relaţiei cauzale complexe dintre forţa majoră şi fapta lucrului, Dreptul no. 1/1996 I. Lulă, Observaţii asupra pazei juridice şi capacităţii delictuale, Dreptul no. 3/1996 I. Lulă, Discuţii în legătură cu interpretarea şi sfera de aplicare a art. 1003 din Codul Civil, Dreptul no. 8/1996 I. Lulă, Răspunderea pentru prejudiciile cauzate de animale, Dreptul no. 12/1999 I. Lulă, Observaţii asupra răspunderii civil-delictuale pentru ruina edificiului, Dreptul no. 5/2000 E. Lupan, Cu privire la noţiunea juridică a prejudiciului ecologic, Dreptul no. 3/2003 S. Neculaescu, Reflecţii privind fundamentul răspunderii civile delictuale, Dreptul no. 11/2006 V. Pătulea, Răspunderea autorităţilor publice pentru vătămările produse cetăţenilor prin actele lor, Dreptul no. 4/1997 I. Petre, Consideraţii în legătură cu răspunderea patrimonială a statului şi a judecătorilor şi procurorilor pentru erori judiciare, în lumina dispoziţiilor constituţionale şi legale, Dreptul no. 9/2005 L. Pop, Unele aspecte în legătură cu răspunderea pentru prejudiciile cauzate prin acte administrative ilegale, Dreptul no. 9/1994 L. Pop, Răspunderea civilă pentru daunele nucleare, Dreptul no. 7/2002 L. Pop, Discuţii de lege lata cu privire la recunoaşterea existenţei unui principiu de răspundere civilă delictuală pentru fapta altuia consacrat în Codul Civil român, Dreptul no. 8/2004 I.-F. Popa, Răspunderea civilă medicală, Dreptul no. 1/2003 V. Stoica, Relaţia cauzală complexă ca element al răspunderii civile în procesul penal, Revista Română de Drept (RRD) no. 2/1984 C. Toader, Răspunderea pentru produsele defectuoase, Revista de Drept Comercial (RDC) no. 11/1998 C. Turianu, Răspunderea civilă pentru dauna morală, Dreptul no. 4/1993 C.T. Ungureanu, Răspunderea civilă pentru produsele defectuoase potrivit O.G. nr. 87/2000, Juridica no. 2/2001 I. Urs, Repararea prejudiciului moral în cazul inconştienţei totale şi definitive a victimei, Dreptul no. 5/1997
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I. Urs, Criterii de apreciere a prejudiciilor morale şi a despăgubirilor băneşti pentru repararea daunelor morale, Dreptul no. 4/1998 I. Urs, Înţelesul noţiunii de prejudiciu de agrement, temei de reparare bănească a daunelor morale, Dreptul no. 2/1999
4. Case Law Collections F. Ciutacu, Drept civil român, vol. III – Teoria generală a obligaţiilor. Culegere de speţe (Bucharest 2005) 71 ff. C. Turianu, Răspunderea civilă delictuală. Practică judiciară comentată şi adnotată (Bucharest 2004)
Contributors Håkan ANDERSSON Uppsala University, Faculty of Law P.O. Box 512 SE-751 20 Uppsala Sweden Tel.: (+46) 18 471 2001 hakan.andersson@ jur.uu.se
Håkan Andersson is Professor of Private Law at Uppsala University. After graduating (LL.D, Dr juris) in 1993 on a thesis in tort law (Purpose of Protection and Adequacy. On the Limits of Liability in Tort Law) he has developed his interest in constructive use of newer philosophy in the field of private law, especially tort law. His research project “Transformation of the Legal Argumentation in Late Modernism” is developing discourse theory and philosophy of language in direct contact with private law. In addition to his thesis, he has also written a monograph on Third Party Losses. Andersson has written more than 80 opuses. An up to date list of his works (opus) is available at http://www. jur.uu.se/staff/default.aspx?action=visa&id=642.
Bjarte ASKELAND Bjarte Askeland Faculty of Law University of Bergen Magnus Lagabøtes plass 1 5010 Bergen Norway Tel.: (+47) 55 58 95 84 Fax: (+47) 55 58 95 71 bjarte.askeland@jur. uib.no
Bjarte Askeland studied law at the University of Bergen and finished as cand. jur. in 1991. From 1992– 1994 he worked as an assistant judge and as a judge in Jæren district county court, Norway. He later worked at the Faculty of Law, University of Bergen as assistant professor, research fellow, and associate professor. He now works (as of 2005) as a professor at the same faculty. He became doctor juris in 2001 on a thesis on vicarious liability. He has written two books and a number of articles, mainly within tort law and legal theory.
Ewa BAGIŃSKA Uniwersytet Mikolaja Kopernika ul. Gagarina 15 87-100 Torun Poland Tel.: (+48) 606 961 601 Fax: (+48) 56 611 4005
Ewa Bagińska received a PhD in law in 1999 and habilitated in 2006. She is an Associate Professor in the Department of Civil and International Commercial Law at the Nicholas Copernicus University in Torun and at the University in Gdansk. Fulbright Visiting Scholar (1998/1999) and NATO Science Fellowship grantee (2000/2001) at The Catholic University of America, Washington, DC.
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baginska@uni. torun.pl
Elena BARGELLI Faculty of Political Science Pisa University Via Serafini, 3 56126 Pisa Italy Tel.: (+39-050) 2212458 Fax: (+39-050) 2212470 [email protected] Søren BERGENSER University of Copenhagen Studiestraede 6, 1455 Copenhagen Denmark Tel.: (+45) 26 14 71 17 [email protected]
Agris BITĀNS University of Latvia, Lecturer at Faculty of Law, Attorney at Law Lāčplēša iela 20a, Riga, Latvia LV 1011 Tel.: (+371) 7280102 Fax: (+371) 7504566
Contributors
Areas of expertise: civil liability, consumer protection, products liability, medical law. Author of the book “Odpowiedzialnosc za produkt w USA” (Products liability in the USA), Torun 2000, “Odpowiedzialnosc odszkodowawcza za wykonywanie wladzy publicznej” (Public liability) Warsaw 2006 and several articles. In 2007 she joined two teams of the Commission for the Codification of Civil Law working on the new civil code (tort liability and consumer contracts).
Elena Bargelli has been Associate Professor of Private Law at the Faculty of Political Science (University of Pisa) since 2006. She graduated in Law at the University of Pisa in 1993, got a PhD in Private Law in 1999, and became lecturer at the Faculty of Economics in Pisa in 2001. She is author of a book on Property and Tenancy Law, and of several articles concerning Tort Law (with particular regard to nonpecuniary losses), Contract Law and Family Law.
Søren Bergenser is an assistant professor at the University of Copenhagen, institute of private law under Professor Vibe Ulfbeck, where he deals with professional and product liability and the liability of public authorities. Søren Bergenser graduated from Aarhus University in 1999 where he also worked as an assistant professor from 1997–1999. Søren Bergenser is also a practising lawyer and has liability and insurance law and litigation and arbitration as his expertise areas.
Agris Bitāns graduated from the Faculty of Law at the University of Latvia with a Bachelor’s degree in law in 1993 and with a Master’s degree in law in 1995. Apart from practising as an Attorney at Law in the Law Office “BALTMANE & BITĀNS”, he continues his academic studies at the University of Latvia for a Doctor’s degree. He is also a lecturer at the Civil Law Department, Faculty of Law, University of Latvia. His area of expertise is the law of obligations,
Contributors
agris.bitans@ baltmanebitans.com
Herman A. COUSY University of Leuven Faculteit Rechtsgeleerdheid Afdeling Ekonomisch Recht Tiensestraat 41 B-3000 Leuven, Belgium Tel.: (+32-16) 325134 Fax: (+32-16) 325314 herman.cousy@law. kuleuven.ac.be
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with a focus on contract law and civil liability, tort law, and intellectual property law. He is a co-author of the commentary on the Latvian Civil Code. He is the author of the book “Civil liability and its kinds” (Civiltiesiskā atbildība un tās veidi) and of many articles relating to law issues. He is a member of the Latvian Bar, International Bar Association and AIPPI (International Association for the Protection of Industrial Property). Since 2006 he is President of AIPPI Latvian Group. Since his admittance to the Latvian Bar in 1998, he has been practising mostly in civil (contracts and tort), intellectual property, commercial and administrative matters. His fields of legal research include contract and tort law, personal and personality rights, medical law and media law. He is also a regular participant at international conferences and workshops dealing with intellectual property law, civil law, litigation and arbitration.
Herman Cousy is currently teaching commercial and insurance law as well as a course on the legal aspects of credit transactions and European insurance law at the Catholic University of Leuven, where he has been a professor ordinarius since 1982. He was born in 1946 and graduated in 1969 with the degrees of Doctor iuris and Licenciaat in het Notariaat. He is also Master of Comparative Law (University of Chicago, 1970). Herman Cousy has held numerous academic positions and for ten years he was the chairman of the Scientific Commission for Legal Sciences of the Belgian National Fund of Scientific Research (now: FWO-Flanders). He has been President of the Belgian governmental “Commission des Assurances” for over seventeen years and is currently “Assessor” in the Belgian Council of State and Director of the Center for Risk and Insurance Studies (CRIS) at Leuven University. Herman Cousy has published extensively in the field of private law, especially tort law and insurance law and lectures both nationally and internationally on these topics.
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Contributors
Eugenia G. DACORONIA Attorney-at-Law Eugenia Dacoronia was born of Greek nationality in Assistant Professor Cairo (Egypt) in 1958. She graduated with excellence of Civil law at the in 1979 from the Athens Faculty of Law, where she Athens University also received her doctorate with excellence in 1994. Department of Law She has attended several courses abroad (Amsterdam, 312, Patission Str. King’s College London, Tulane University). GR-11141 Athens Since her admittance to the Athens Bar in 1981, she Greece has been practising mostly in civil (contracts and real Tel.: (+30-210) property), intellectual property, commercial and ad201-0011 ministrative matters. She is also a European Patent Tel./Fax: (+30-210) Attorney. 223-7150 Since September 2005 Eugenia Dacoronia is an AsDacoronia@yahoo. sistant Professor of Civil law at the Athens Univercom sity Department of Law, where she has been lecturing Civil Law since 1995 and has worked as an assistant since 1980. She teaches, among other subjects, General Principles of Civil Law, Real Property Law, Law of Environment, Torts in the legal system of the U.S.A. She is the author of two books “Sublease of Movables” (in Greek) and “The Issue of Construction of Wills under Greek law” (in Greek) and she has published various articles and notes on Court decisions in Greek legal periodicals and in the European Review of Private Law (in English and French). Eugenia Dacoronia has taken part in international congresses as a national representative and participates in the Trento Common Core project as well as the Study Group on a European Civil Code as a member of the Advisory Council on: a) Torts and b) Lease of movables. Since December 2006 Eugenia Dacoronia is a member of the Central Codification Committee of the Greek Parliament. Anton DULAK Univerzita Komenského v Bratislave Právnická fakulta Šafárikovo nám. 6 818 05 Bratislava Slovakia Tel./Fax: +421 2 434 26 611 Anton.Dulak@flaw. uniba.sk
Anton Dulak was born in 1963 in Košice. After graduating in law in 1985, he started to work at the Department of Civil Law at the Commenius University Bratislava as an assistant. In 2001 he obtained his PhD degree. In 2003 Anton Dulak habilitated with a thesis on Product Liability Law and was promoted to an associate professor. His main fields of research include Tort Law and Consumer Protection Law.
Contributors
Isabelle C. DURANT Université catholique de Louvain Faculté de droit Place Montesquieu 2/38 B-1348 Louvain-laNeuve Belgium Tel.: (+) 32 (0)10 47 47 41 Fax: (+) 32 (0)10 47 47 32 isabelle.durant@ obli.ucl.ac.be
Michael G. FAURE METRO, Faculty of Law Maastricht University P.O. Box 616 6200 MD Maastricht The Netherlands Tel.: (+31-43) 388-3028 Fax: (+31-43) 325-9091 Metro.Institute@ facburfdr.unimaas.nl
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Isabelle Claire Durant studied law at the Université catholique de Louvain (UCL), where she was a teaching and research assistant from 1991 until 2004. She got her PhD degree in law in 2003 at this university and is currently professor at the Department of Private Law. She teaches law of obligations, contract and real property law and publishes mainly in the areas of contract and tort law. She also contributes to several research projects for the Austrian Academy of Sciences’ Research Unit for European Tort Law and for the European Centre of Tort and Insurance Law in Vienna where she was on leave for work from October 2004 to March 2005. In addition, she was attorney at the Brussels Bar from 1991 until 2004.
Michael Faure studied law at the University of Antwerp (licenciate in law 1982) and criminology at the University of Gent (licenciate in criminology 1983). He obtained a Master of Laws from the University of Chicago Law School (1984) and a doctor iuris from the Albert Ludwigs Universität Freiburg im Breisgau. He was first a lecturer and then a senior lecturer at the department of criminal law of the law faculty of Leiden University (1988–1999) and became academic director of the Maastricht European Institute for Transnational Legal Research (METRO) and professor of Comparative and International Environmental Law at the law faculty of Maastricht University in September 1991. He still holds both positions today. In addition, he is academic director of the Ius Commune Research School and a member of the board of directors of Ectil. Since 1982 he is equally attorney at the Antwerp Bar. He publishes in the areas of environmental (criminal) law, tort and insurance and economic analysis of (accident) law.
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Jörg FEDTKE University College London Institute of Global Law Faculty of Laws Bentham House Endsleigh Gardens London, WC1H OEG United Kingdom Tel.: (+44-20) 7679-1474 Fax: (+44-20) 7679-1502 [email protected] Herkus GABARTAS Mykolas Romeris University European Union Law Department Ateities st. 20 LT-08303 Vilnius Lithuania Tel.: (+370 5) 204-2340 Fax: (+370 5) 238-7881 herkus.gabartas@ akropolis.lt
Contributors
Jörg Fedtke obtained a doctorate at the University of Hamburg in 2000, where he worked as a researcher at the Seminar für ausländisches und internationales Privat- und Prozessrecht in 2001 and 2002. He currently teaches at University College London, where he is Professor for Comparative Law and Director of the Institute of Global Law. Since 2003 he also holds a post as Visiting Professor at The University of Texas. He teaches and publishes in the areas of tort law, constitutional law and comparative methodology.
Herkus Gabartas obtained his doctorate degree from Mykolas Romeris University (Vilnius, Lithuania) in 2004, where he currently works as an associated professor and teaches the courses on EC Tax Law as well as substantive EU Law. He is also a graduate of Vilnius University, Lithuania (Master’s degree, 1999) and the University of Florida, USA (LL.M. in Comparative Law, Certificate in International Business & Trade Law, 2001). He did his research inter alia at the Austrian & International Tax Law Department of Vienna University of Economics & Business Administration (Marie Curie Fellowship, Austria, 2004) as well as the Tax Law Institute of the University of Gent (Belgium, 2003). Herkus Gabartas is equally a practising attorney at the Lithuanian Bar. The areas of his particular interest are: EC Tax Law, Real Estate Law, Tort Law.
Suvianna HAKALEHTO-WAINIO University of Suvianna Hakalehto-Wainio was born in Helsinki in Helsinki 1966. She works as a lecturer in administrative law Department of Public in the Department of Public Law, Faculty of Law, Law University of Helsinki. She has been working there P.O. Box 4 in various research projects since 1996. Suvianna FI-00014 Hakalehto-Wainio spent the academic year 1994– Finland 1995 in Estonia lecturing at the University of Tartu Tel.: +358 44 344 (Eurofaculty program). She is currently working on 7768 her PhD on the tort liability of public authorities. Her hakaleht@mappi. main fields of interest are tort law, administrative law, helsinki.fi education law, child law and human rights.
Contributors
Ton HARTLIEF University of Maastricht Postbus 616 NL-6200 MD Maastricht The Netherlands Tel.: (+31-43) 388-3104 Fax: (+31-43) 325-8981 t.hartlief@ pr.unimaas.nl Jiří HRÁDEK Přecechtělova 16/2393 155 00 Praha 5 Czech Republic Tel.: (+420) 728 228224 [email protected]
Bernhard A. KOCH University of Innsbruck Innrain 52 A-6020 Innsbruck, Austria Tel.: (+43-512) 507-8110 Fax: (+43-512) 507-9885 bernhard.a.koch@ uibk.ac.at http://www. zivilrechts.info
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Ton Hartlief is professor of private law at the University of Maastricht.
Jiří Hrádek graduated in law from the Charles University in Prague in 2002. He studied at the University of Hamburg (2000–2001), LL.M. programme at the University of Tübingen (2002–2003) and is currently working on his PhD at the Charles University in Prague. Since 2007 he has been an advocate in Prague. Jiří Hrádek’s current research focuses on the area of EC law, particularly in relation to liability issues, conflict of laws and consumer protection. He is a regular participant in international conferences and workshops dealing with EC law and civil law.
Bernhard A. Koch was born in 1966 in Feldkirch (Austria). He studied law in Innsbruck (Mag. iur. 1989), Tübingen (Germany, Dr. iur. summa cum laude 1992), and Michigan (USA, LL.M. 1993). He completed his habilitation for private law and comparative law in 1998. Bernhard A. Koch started to work as an assistant at the University of Innsbruck in 1985, where he was awarded tenure in 1999. After two years on leave for work at ECTIL and the Austrian Academy of Sciences, he returned to Innsbruck, where he holds a chair in civil law. Since 2004, Koch is the Vice Director of the Austrian Academy of Sciences’ Research Unit for European Tort Law. Bernhard A. Koch’s main fields of research are tort, contract, real property and family law. He is a member of the European Group on Tort Law.
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Helmut KOZIOL Research Unit for European Tort Law/ European Centre of Tort and Insurance Law Landesgerichtsstraße 9a-11 A-1080 Vienna, Austria Tel.: (+43-1) 401271688 Fax: (+43-1) 40127-1685 helmut.koziol@ oeaw.ac.at [email protected] Irene KULL University of Tartu Faculty of Law Näituse 13a 50416 Tartu Estonia Tel.: + 372 7 375 385 Fax: + 372 7 375 983 www.iuridicum.ee www.ut.ee [email protected]
Janno LAHE University of Tartu Faculty of Law Näituse 20 50416 Tartu Estonia Tel.: + 372 737 5992 Fax: + 372 7 375 983 www.iuridicum.ee
Contributors
Helmut Koziol is currently Executive Director of the European Centre of Tort and Insurance Law as well as Director of the Research Unit for European Tort Law of the Austrian Academy of Sciences. He was born in 1940 in Vienna and, after graduating (Dr. iuris) from the University of Graz in 1963, he worked as an assistant at the Law Faculty in Bonn. Helmut Koziol returned to Austria in 1967 when he became Professor of Private Law at the University of Linz (1967–1969), subsequently being offered a chair at the University of Vienna which he held until 2000. His main fields of legal research include Tort Law and Banking Law.
Irene Kull obtained the PhD in Civil Law at the University of Tartu in 2002. She became professor of civil law in 2007 and holds this position in the chair of commercial and intellectual property law. Irene Kull participates in the Study Group of European Civil Code as an adviser on the Working Team on Rental of Movable Property, Trust and Donation contracts. She was a member of the group working on the draft of Estonian Law of Obligations Act. Among her publications there are commentaries on Estonian Law of Obligations (general part), two textbooks and a variety of journal articles on issues in contract law and the harmonisation of private law. She lectures on contract law, law of obligations and European contract and commercial law. Her main interests include the general principles of contract and tort law, harmonisation of European private law and comparative contract law. Since 1995 she has worked as an adviser on the civil chamber of the Estonian Supreme Court.
Janno Lahe obtained his PhD in Civil Law at the University of Tartu in 2005. Since September 2007 he is dozent (assistant professor) of civil law. Since 2006 he has worked as an advisor to the civil chamber of the Estonian Supreme Court. Among his publications there are a variety of journal articles on issues in tort and insurance law. He lectures on insurance law and non-contractual obligations. His main interests
Contributors
www.ut.ee [email protected] Rok LAMPE University of Primorska Faculty of Management Cankarjeva 5 6105 Koper Slovenia Tel.: +386 2 2512 024 +386 40 84 66 21 rok.lampe@ uni-mb.si
Milda LAUČIENĖ Attorney-at-law S.Konarskio g. 49 LT-03123 Vilnius Lithuania Tel.: +370 686 93581 Fax: +370 5 260 8559 [email protected] Peter LOSER University of Basel St.Galler Kantonalbank Legal & Compliance St. Leonhardstrasse 25 CH-9000 St. Gallen Switzerland Tel.: (+41-71) 231 3131 [email protected]
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include the law of obligations, insurance law and harmonisation of European tort law. Rok Lampe is currently lecturer of law at the University of Primorska. He was born in 1973. He graduated from the Faculty of Law, University of Maribor (Slovenia) and obtained an LL.M. from the University of Utah. He defended his PhD thesis at the Faculty of Law, University of Maribor where he worked as an assistant. Research Stays: 1996 – European Law at University of Amsterdam, Tempus scholarship programme. 1999 – Governmental scholarship of the Czech Republic for PhD research at the Charles University in Prague. 2001 – Visiting researcher at Yale Law School under tutorship of Prof. Anita L. Allen for the PhD thesis “The Right of Privacy, In Defence of a Broad Concept of the Right of Privacy”. His fields of legal research include tort law, personality law, medical law and media law. Milda Laučienė graduated from the University of Vilnius, Faculty of Law (Lithuania) in 2000. Since 2005 she is a practising attorney-at-law at the Lithuanian Bar and her areas of expertise include medical law, pharmaceutical law and contract law
Peter Loser was born in 1964. He studied law in St. Gallen and Lausanne, Switzerland (University of St. Gallen, lic.iur. 1990; Dr.iur. summa cum laude 1994) and has habilitated at the University of Basel (Privatdozent for Private, Commercial and Comparative Law, 2006). He was a visiting scholar at Yale University in 1992/93 and did research at the UNIDROIT in 1999 and at the University of Oxford in 1999. Currently Peter Loser teaches private, company and tort law at the Universities of Basel, Lucern and St. Gallen. He is an active participant of the project “The Common Core of European Private Law” (University of Trento, Italy). Peter Loser has also worked as a lawyer since 1995 and is legal counsel and member of the Direction of a bank.
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Attila MENYHÁRD ELTE Faculty of Law, Civil Law Department Egyetem tér 1–3 H-1364 Budapest Hungary Tel.: (+36-1) 411 6510 [email protected]. hu
Olivier MORÉTEAU Paul M. Hebert Law Center Louisiana State University W323 Law Center Baton Rouge, LA 70803 United States Tel.: +1 225 578 1126 Fax: +1 225 578 3677 [email protected]
Contributors
Attila Menyhárd was born in 1968. He works at the University of Eötvös Loránd, Faculty of Law, Civil Law Department (Budapest) as head of the department. He is a listed member of the Arbitration Court attached to the Hungarian Chamber of Commerce and Industry, Budapest. Special research fields are: contract law, tort law, property law and company law. Participant in several international projects on contract and tort law. Promoted with PhD degree in 2003. He is the author of three books and many other publications in tort law, contract law, property law and company law. He teaches the whole range of private law and has special courses in commercial law, law and economics, law and literature and human rights in private law. He is taking part in the project for a new Hungarian Civil Code being responsible for the provisions on property law and rent law.
Olivier Moréteau was born in 1956 in Lyon. He studied law at the Université Jean Moulin Lyon 3 where he completed his doctorate (Estoppel and protection of reliance in comparative law), after research in Cambridge with a British Council scholarship. He worked as an assistant and then lecturer at the Université Jean Moulin Lyon 3. He was appointed professor (agrégation de droit privé) at the University of Grenoble 2 and then Lyon 3. He served as a Director and VicePresident for International Relations at Université Jean Moulin Lyon 3 (1993–1999) and as the Director of the Edouard Lambert Institute of Comparative Law (Deputy Director 1985–2000, Director 2000–2005). He was visiting professor at the University of Minnesota (1992), Boston University (almost every year between 1993 and 2004) and the University of Melbourne (2002, 2004). In 2005, he was appointed Professor of Comparative Law on the newly created Russell Long Chair of Excellence, at Louisiana State University (Baton Rouge) where he is the Director of the Center of Civil Law Studies. He teaches comparative law and the law of obligations. He publishes books and articles on English law and comparative law, especially in the field of obligations and the relationship of law and languages. He is a member of the European Group on Tort Law, the International Academy of Comparative Law and the American Law Institute.
Contributors
Ken OLIPHANT CSET Reader in Tort School of Law University of Bristol Wills Memorial Building Queens Road, Bristol BS8 1RJ United Kingdom Tel.: (+44-117) 954 5690 Ken.Oliphant@bris. ac.uk
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Ken Oliphant was born in Glasgow but educated in England. He is now CSET Reader in Tort at the University of Bristol. Previously he lectured at King’s College London (1988–99) and Cardiff University (1999–2006). He has written extensively in the fields of tort law and compensation for incapacity. He is the joint author of Tort Law: Text & Materials, Oxford University Press, 3rd edn., 2007 (with Mark Lunney) and Torts, Palgrave MacMillan, 3rd edn., 2003 (with Alastair Mullis), and general editor of the practitioners’ reference work, The Law of Tort, in the Butterworths Common Law Series (2nd edn., 2007). He is also UK correspondent for the Torts Law Journal and on the editorial advisory board of the Journal of Law and Society.
André G. Dias PEREIRA University of André Pereira graduated in Law in 1998 at the UniCoimbra versity of Coimbra (awarded Prof. Manuel de AnFaculy of Law drade Prize for best student), having also studied in P-3004-545 Coimbra Göttingen. He attended summer courses in Utrecht Portugal and Helsinki. In Coimbra he obtained a Post-graduTel.: (+351) ation in Medical Law (1999) and a Post-graduation 239-859801 in Civil Law (2002). He wrote the thesis “Informed Fax: (+351) Consent on the Patient-Doctor Relationship”, which 239-821043 was awarded Prof. Manuel de Andrade Prize for best andrediaspereira@ thesis in Civil Law in 2003 and was published in hotmail.com 2004 (700 pp.). He is presently Assistant Professor at the Faculty of Law of the University of Coimbra and lectures Medical Law in several academic institutions. He has been teaching since 1998 in the area of Civil Law (General Theory of Civil Law; Law of Obligations, Contract Law, and Property Law), Criminal Law (from 1998 to 2000) and Medical Law (since 2000). He is the Scientific Secretary of the Centre for Biomedical Law, Vice-President of an Institutional Review Board of a Health and Research Institution (AIBILI) and member of the National Council on Legal Medicine. He is involved in several international research projects. Pereira has been invited internationally for lectures and seminars (in Europe, Brazil and Japan) and published several articles abroad. As invited scholar he researched at Roger Williams University (USA), at the ECTIL/ ETL – Austrian Academy of Sciences and at the University of Salzburg. Since 2003, he teaches in Salzburg at the Summer Course on European Private Law.
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Eoin QUILL University of Limerick School of Law Limerick Ireland Tel.: (+353-61) 20-2220 Fax: (+353-61) 20-2682 [email protected]
Ionut RADULETU Research Institute for Eastern European Business Law University of Economics Vienna/Austria Tel.: (+43) 131-336/4196 Fax: (+43) 131-336/764 ionut_raduletu@ yahoo.de
Contributors
Eoin Quill was born in Limerick in 1965. He studied law at University College Cork, a constituent college of the National University of Ireland, between 1982 and 1988 obtaining two bachelors and a masters degree – BCL; LLB; LLM. He lectured at the School of Professional and Management Studies in Limerick from 1988–1990 and has been lecturing in the University of Limerick since 1991 in a variety of subjects including Tort, Commercial law and Comparative Civil Obligations. His publications include a textbook – Torts in Ireland (Gill & Macmillan 1999, 2nd edn. 2004) – and a variety of journal articles on issues in tort and contract. He was treasurer of the Irish Association of Law Teachers from 1997 to 2000 and is currently an examiner in Tort for the Law Society of Ireland.
Ionut Raduletu was born in 1976 in Cluj Napoca (Romania). He studied law and philosophy at the universities of Craiova and Bucharest. He pursued postgraduate studies in German and European law in Saarbrücken/Germany (2002–2004). In 2005 he was a trainee with the European Commission in Brussels and in 2006 visiting fellow of the Max-Planck-Institute for Comparative and Private International Law in Hamburg. Since April 2007 he is a scholarship holder of the Research Institute for Eastern European Business Law in Vienna. His interests concern comparative private and business law and EU harmonization issues.
W.V. Horton ROGERS School of Law Horton Rogers is a Senior Fellow at the School of University of Law, University of Nottingham. He was educated at Nottingham Trinity College, Cambridge in the early 1960s and is Nottingham NG7 barrister of Gray’s Inn. He worked first in the legal 2RD civil service and then as lecturer in law at the UniUnited Kingdom versity of Nottingham. He was Professor of English Tel. (+44-113) Law at the University of Leeds until 1998 and has 225-4599 also been a visiting teacher at Vanderbilt University. Fax (+44-113) He is a Board member of ECTIL and a member of the 225-4767 European Group on Tort Law. His interests are the william.rogers4@ law of obligations, particularly tort law and “media ntlworld.com law”.
Contributors
Albert RUDA University of Girona Facultat de Dret Campus de Montilivi E-17071 Girona Spain Tel.: (+34-972) 418 142 Fax: (+34-972) 418 146 [email protected] Website: civil.udg. edu/ruda
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Albert Ruda was born in 1975 in Barcelona. He graduated from the University of Girona in 1997, where he is an assistant professor and currently Reader in Private Law. After having published a short dissertation on barter agreements (2002; 2nd ed. in press), he submitted his Doctoral Thesis on tort liability for pure ecological damage (2006) under the direction of Prof. Miquel Martín-Casals, which was given the 2006 award for the best Spanish Thesis on civil protection (General Directorate for Civil Protection, Ministry of Internal Affairs). Previously, a paper of his on market share liability was given an award by the Spanish Society of Tort Lawyers (2002). He is a member of the Observatory of European and Comparative Private Law of the University of Girona, fellow of the European Centre of Tort and Insurance Law (ECTIL, Vienna), reporter of the Trento “Common Core of European Private Law” Project (Environmental Liability), secretary of the Legal Drafting Group of Studies (GRETEL) and former Van Calker scholar of the Swiss Institute of Comparative Law (2001). He has extensive experience as a webmaster (civil.udg.edu, www.egtl.org) and has done research stays at ECTIL (2001 and 2003), the Centre for Liability Law at the Tilburg University (2004) and the Faculty of Law of the University of Cambridge (2006).
Barbara C. STEININGER Research Unit for Barbara Steininger was born in Feldkirch (Austria) in European Tort Law 1977 and was brought up bilingually (German/Dutch). Landesgerichtsstraße She studied law in Vienna and Leiden and graduated 9a-11 in 1999. Between 1998 and 2000 she worked as a A-1080 Vienna, student assistant at the Institute of Roman Law, UniAustria versity of Vienna. Between 1999 and 2003 Barbara Tel.: (+43-1) Steininger worked at the European Centre of Tort and 40127-1610 Insurance Law in Vienna. Since 2002 she has been a Fax: (+43-1) staff member of the Research Unit for European Tort 40127-1685 Law of the Austrian Academy of Sciences. In 2002 barbara.steininger@ Barbara Steininger conducted research at the Maasoeaw.ac.at tricht European Institute for Transnational Legal Research (METRO) in Maastricht and at the Institut Suisse de Droit Comparé in Lausanne. From June to December 2004 she was on leave for work at the University of Geneva. In 2005 she finished her doctoral thesis under the supervision of Prof. Helmut Koziol
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Contributors
(“Verschärfung der Verschuldenshaftung”) and completed a nine month full-time court internship at various courts in Vienna. Vibe ULFBECK University of Copenhagen Studiegaarden, Studiestraede 6, 1455 Copenhagen, Denmark Tel.: 35323148 Vibe.Ulfbeck@ jur.ku.dk
Vibe Ulfbeck was born in 1966 and graduated as a lawyer at the University of Copenhagen in 1990. In 1991 she obtained an LL.M. degree at the University of Cambridge, UK. From 1991–1992 she was employed in the Danish Justice Department and since 1993 she has been at the University of Copenhagen where she obtained her doctorate in 2000. In 2004 she was appointed professor of private law.
Christiane C. WENDEHORST University of Christiane Wendehorst was born in 1968. She graduGöttingen ated from Munich University in 1993. After the First Faculty of Law and Second State Examinations, she obtained an Platz der Göttinger LL.M. degree from the University of Cambridge/UK Sieben 6 in 1997/98. 37073 Göttingen From 1993–1998 she was a research assistant at the Germany Institute of International Law at Munich University. Tel.: +49 (0)551 39 In 1995, she obtained the degree of Dr. iur., and in 7396 1998 the degree of Dr. iur. habil. In 1998, she was Fax: +49 (0)551 39 offered a Chair of Civil Law at Greifswald Univer7395 sity, and in 1999, she was appointed as Chair for c.wendehorst@ Civil Law, Medical Law, Private International Law uni-goettingen.de and Comparative Law at Göttingen University. She is currently Director of the Institute for Legal History, Legal Philosophy and Comparative Law and of the Sino-German Institute for Legal Studies.
Index The numbers refer to the marginal notes and the letters refer to the reports; A stands for Austria, B for Belgium, BK for the report of Bernhard A. Koch, CH for Switzerland, CR for the Comparative Remarks, CW for the report of Christiane Wendehorst, CZ for the Czech Republic, D for Germany, DK for Denmark, E for Spain, EST for Estonia, EU for European Union, EW for England and Wales, FIN for Finland, F for France, GR for Greece, H for Hungary, HC for the report of Herman Cousy, HK for the report of Helmut Koziol, HR for the report of W.V.H. Rogers, I for Italy, IRL for Ireland, LT for Lithuania, LV for Latvia, N for Norway, NL for the Netherlands, P for Portugal, PL for Poland, ROM for Romania, S for Sweden, SK for Slovakia and SLO for Slovenia. ability to work, see earning capacity abortion A 5, 7, 11; CR 10, 13–14; D 11; E 36; PL 49, 52, 54, 57, 63–64, 66, 68–70, 72, 74 accident A 15–16, 26–29, 51–52, 55, 65; B 31, 34, 37, 39, 70–73, 80, 91; CR 28; CZ 15–16, 37, 71, 75–76; D 47; DK 5; E 4, 23, 40, 59; EST 37–38; EU 4, 6, 25; F 25–27, 34, 36, 53; GR 23, 26–27, 42–45, 47, 54, 58–59, 61, 63; H 9, 11; IRE 1, 14; LV 25–26, 29, 57, 60; N 2, 6; NL 6, 17, 28, 39; P 42, 56–57, 63; PL 22, 29–30; ROM 39, 68, 72, 91; S 5, 10; SK 19; SLO 21, 23–25, 29, 31, 38–39 act of God, see force majeure additional compensation, see damages, additional ~ adequacy A 34, 36, 46, 49; EW 33; GR 5; N 3–5, 31; PL 68–69; ROM 23 administrative acts, see public liability agent A 30; CH 6; CZ 83; D 8; DK 16– 17; E 22; F 31, 34, 36, 41; P 13; ROM 1, 41, 43, 46–47, 90–92 authority CH 3; D 22, 27–29; DK 5, 7, 10, 12–13, 24; EST 3, 5; EU 42; EW 36, 44, 50, 59; FIN 4–7, 10, 12–14, 27; H 27; I 16–17; N 14, 22–24; P
25, 33, 50; PL 19, 28, 63, 84, 91; ROM 34, 74; SK 11, 21, 23–24; SLO 36–37 advertising A 57; D 14, 20; E 13; NL 45 AIDS, see HIV alternative compensation systems B 85; EU 16; LT 30; NL 28; P 72 animals A 57–58, 63–64; CH 26; D 24; E 18–20, 55; H 15–16; N 14; P 5, 38–41; PL 92; ROM 13, 49, 52–53, 66; S 8 asbestos B 16; CR 20–21; EW 1–2, 6, 8, 11, 20–21, 23; IRE 4; NL 20, 22, 25–26; SLO 6, 9–11, 20 assault EW 29–30; IRE 11, 21; S 32, 36, 43–44; SK 4, 6, 8 assessment of damages, see damages, calculation of ~ assisted reproduction CR 17; CZ 92, 96, 99–103, 105, 107; GR 56; P 12–13, 15 associations A 57; B 1, 4, 6, 14; CH 8; E 60; EST 31; F 2; GR 37; IRE 28; NL 6; P 39–41 auditors A 77, 84; CH 11, 49; EW 5; H 35; N 29–30, 33 aviation A 2–3, 85; D 53; DK 16–18; E 1–2, 5; P 10; ROM 16
562 bad faith EW 40; LT 34, 43; ROM 75 bank CH 3, 28, 31–32, 34–35, 47; DK 16; EW 12–15, 32, 44; F 51; GR 11–13, 15, 29, 65–66; H 6–8, 12–14; IRE 6; LT 41; P 3; PL 5–6, 11; SK 12, 25, 28, 30–33 bankruptcy CZ 30–31, 33; GR 29–30; H 2; IRE 28; LT 34–35 barristers, see lawyers battery GR 37; IRE 5; LT 5; S 4 Bill of Rights B 14, 61 blood CZ 35; D 34, 37–40; GR 27; P 24, 26, 28–30, 32, 34, 37; PL 26–27 breach of duty A 34, 40, 43, 45, 47–50; CH 9; CR 26; CZ 7–8, 12, 22, 36–37, 79, 83; D 22; EST 30, 46; EW 2, 11, 16, 21, 24, 37–38; GR 30; H 12, 14, 24–27; I 4–5, 52, 56–58, 62; IRE 12, 23, 25; LV 49; NL 23, 47; P 47; PL 54; SK 14, 22; SLO 21 burden of proof A 40, 79; B 6; CH 21, 23–25; CZ 7; D 3; DK 4, 6, 8, 17; E 33–34, 40, 43, 48–49, 53; EST 14, 16, 21, 28, 35, 38–39; EW 48; H 20; I 29; LT 48–49, 51, 54–55; LV 9; P 7, 44; PL 29, 48, 92; ROM 7, 28–29, 52, 54, 67, 90, 95; S 47–48, 50–51; SLO 26, 28 reversal of the ~ A 79; CH 21, 23–24; D 3; DK 4, 6, 8; E 33, 40, 43, 48–49, 53; EW 48; SLO 28 capacity B 24–25, 39, 94; CZ 36; EST 44; EU 30; EW 34, 49; IRE 11; ROM 7, 28–29 catastrophes CR 4, 6; E 7; F 53; GR 74; NL 8–9, 36, 43, 53 causal uncertainty B 44–45, 78; EW 23, 48; NL 22–23, 25 causation A 29, 34, 36, 38, 42, 80, 86; B 42, 47–48, 70–72, 83, 93–94; CH 9, 19–23, 25, 46; CR 20, 26; CZ 65–66, 69, 73–74, 76–81; D 45; E 38, 48–49, 51; EST 11–13, 21, 23, 44; EW 21, 23–24, 27, 43, 45, 48–49; F 16, 25, 28; FIN 27; GR 5–6, 66, 70; H 14, 26; IRE 9, 25, 36; LT 39, 44; LV 46; N 31; NL 37; P 59; PL 32, 46, 52, 57, 67–69; ROM 11–12, 20, 22–23, 43, 56, 90; S 48 alternative ~ A 40–41, 43–44, 48–49; CR 19, 22, 26; E 19–20; EST 14, 16
Index hypothetical ~ PL 8, 10 potential ~ A 44–46, 49; EW 28; P 70 proof of ~ A 40–41, 43, 48; B 72; CH 23, 25; CR 23, 26; CZ 83; E 49; EST 14, 16, 21, 23; EW 23; IRE 36; ROM 51, 54, 95 cheque GR 4–6, 29–30, 65–67, 78 child abuse, see sexual abuse children, see minors church B 49; CR 5; D 2; IRE 11, 24; NL 7; S 45, 60 cigarettes, see smoking civil code reform D 1; PL 1, 35–36; ROM 4–5 civil immunity B 18, 59, 61; CR 37; F 46–47; GR 8; NL 36; PL 19 cohabitation CR 27–31; D 7; E 3, 57; GR 9, 54–58; NL 28–31; PL 22–23, 26; S 6, 9 compensation, see damages compensation funds A 4; B 10–11, 16, 85; CR 6; D 1, 4–6, 25–26; E 3; EW 2, 4; F 52; GR 7, 45, 59, 61, 63; H 3, 36; LV 11–20; N 6, 10; NL 28; PL 31, 74; SLO 6, 9, 11 confidentiality E 10; EST 6; EW 37–40; GR 8; N 20; P 13 conflict of laws CZ 114; EU 3–4; ROM 68 consent, informed ~ A 47, 50; B 1; CH 10; CZ 95, 100, 104; D 14, 37, 39; E 33, 43; FIN 4, 10; H 5; N 19–21; P 13, 19; ROM 36; S 33–34 constitutional rights A 64; B 56, 60; CZ 41; D 9, 15; E 25, 33; EW 40–41; GR 61, 70; I 30, 38, 40, 50, 52; IRE 11, 22, 31; P 53; PL 38, 84–86 constructions B 15; D 21; DK 10–12; E 2, 50; EST 10, 30, 32–34; F 32, 34, 36; GR 12, 17, 20–21, 32, 35–36, 74; H 18–20; IRE 4; NL 20; ROM 49, 53, 66, 95 consumer protection A 9, 87; CH 4, 8, 15; E 21, 48–49, 51; EU 16; FIN 26; LT 62–63; LV 50; NL 44–45, 47; ROM 54, 69 contra bonos mores, see good faith contract A 8, 77; B 4–5, 15, 17, 20–21, 24, 26, 30, 37, 80, 96; CH 2–4, 6–9, 29, 31–33, 35–36, 45; D 3, 23, 49; DK 15, 18; E 5–7, 22, 32; EW 4, 15,
Index 18, 47; F 11, 32–41, 44; GR 11–15, 17, 19, 24, 36, 76, 81–82, 84; H 3, 6–8; I 28, 30, 52, 63; IRE 28; LV 45; N 2; P 5, 7, 18, 45, 47, 49, 73; PL 5–6, 30, 45, 47–48; ROM 6, 8, 28, 47, 62, 81; SK 28, 30–33 breach of ~ A 34; CH 9, 33; D 3, 44; EW 39; GR 11, 13, 15, 81; H 6; I 28–30, 35, 37, 40, 42, 52, 60–61; NL 47; P 7, 47; PL 6, 11, 43–45 contractual liability A 2, 77; B 5, 17, 20, 24, 39, 81, 89, 93–94; CH 14, 47; D 44, 51; DK 15; EST 40–41; F 27, 31, 33, 35, 39, 41, 49; FIN 1; GR 11–16, 76, 81–82, 84; I 28, 52, 61, 63; N 2, 29; NL 47; P 49; PL 43, 47–48; ROM 6–8, 30, 39, 47, 54–55, 66, 93 contribution A 15; B 16; D 25; EW 3, 20, 23; H 25; PL 32, 73 contributory negligence A 7, 12, 44, 88; CR 21–22; CZ 39; D 25, 45, 48; DK 20–21; E 19, 38; EST 15, 31, 33–36, 41; EW 2; F 25; FIN 27; GR 23–24, 73, 76; H 25; I 61; IRE 10, 29; LT 31; LV 60; N 17; NL 15, 24; P 25; ROM 37–38, 51, 59, 84, 94; SLO 24 court expert, see expert witness creditor CH 47; CZ 31, 33; EST 48; GR 73; H 1–2; LT 36; LV 49; NL 34; PL 7, 11–12; ROM 7–8 crime victims D 18; GR 28; H 5; LT 5, 7, 12–13; LV 12, 14, 16–20; S 36; SK 1–2; SLO 6 criminal act A 64; CH 33; CZ 40, 56, 76, 82; D 1, 5–7, 17; E 9–10, 27; EST 7–8; EW 27; F 43, 45, 47; GR 26–28; H 12, 14, 27–28; I 3, 62; LT 5, 8, 11– 12, 14, 19, 35, 39–40, 42, 44–45, 70; LV 8, 11–12, 16, 20; NL 7; P 10, 13, 38; PL 2, 72; ROM 8, 10, 84; S 4, 8, 12, 15, 19–20, 32, 35–37, 39, 41–43, 49; SK 3–6, 8–9, 13, 39; SLO 33–34 criminal procedure A 64; CR 5; CZ 84– 88; E 8–10; GR 10; IRE 14; LT 44; LV 11, 13–14, 16–17; ROM 60, 67, 76; S 41; SK 36, 38–39; SLO 32, 34 damage EW 45 continuing ~ DK 12; E 56; EU 30; LT 6; SLO 12 direct ~ CZ 36–37; E 4, 19; I 12–18; LV 51
563 future ~ D 21; E 35; EW 6–8, 11; GR 42, 44, 46–50, 52–53, 77; IRE 3; LT 8; LV 42; N 34; P 57, 59–60, 67; PL 78–79, 82, 93 indirect ~ A 29, 66, 68; CR 33; GR 6; H 26; I 12, 18; LV 51; PL 28; S 9, 11, 22, 25, 27, 30 damages additional ~ GR 77 aggravated ~ CR 35, 62; S 35–36, 41 adjustment of ~ A 23; CR 20–21, 33; CZ 9–10, 17, 43, 60; D 36; DK 20– 22, 27; E 24–26; EST 23, 34; GR 79; I 20; IRE 3; LT 9–10, 17, 19, 28, 31, 33; LV 16, 40; N 17–18, 20; P 67–68; S 39; SLO 24 bereavement ~ CR 27, 32; CZ 17; D 22; GR 59; I 44; LV 56; PL 23, 28; S 10–11, 15; SK 40 calculation of ~ A 55–56, 68–69; B 48; CH 40, 46; CZ 20, 64; E 12, 27–30, 43; EST 15; FIN 14; GR 34, 38–39, 41, 53; I 10, 20; IRE 1; LV 10, 16, 51; LT 4, 16, 28, 30; N 35; NL 33, 39; P 10, 60–61, 67; PL 16, 32, 55, 59, 61; ROM 80; S 21–22, 25, 28, 30–31, 40, 42, 49, 54, 62–63; SK 6–7 exemplary ~ see punitive damages quantum of ~ A 15, 18, 52; B 41; CR 33; CZ 17, 26, 29, 60, 62, 83; D 17, 21; E 24, 28, 34–35, 39, 42; EU 4; FIN 1, 14; GR 28, 37, 55, 77, 79; I 20, 47; IRE 3, 34; LT 7, 9–10, 22, 70; LV 10, 15–16, 26, 32, 37, 55; N 10–11; NL 28, 33; P 50–51, 59–61, 66, 68; PL 24, 32–43, 51; S 39, 49, 56, 62; SK 34; SLO 7, 24, 39 danger CZ 4; D 22, 42–43; E 37, 39–40; EST 34, 36, 38–39; EW 18; GR 12; NL 16; ROM 33; SLO 24 increased ~ EST 34, 36; N 2; NL 10–14; SLO 34 dangerous activity A 29–28; F 46–47; GR 24; H 5, 9–14; I 9; LT 14, 73; NL 24; P 1, 25–26, 28, 33–34, 36–37, 43–44; PL 92; ROM 36 danno biologico CH 38; I 18, 30, 33, 37, 47, 53–54, 56; P 62 death A 26, 28, 57–58, 65, 68; B 31; BK 1ff.; CR 27, 32–33; CW 1 ff.; CZ 17,
564 71, 73, 75–76; D 7, 14–21; E 2–3, 7, 23, 40; EST 10–16, 37; EW 1, 20–21, 26–29; F 25, 30, 34, 53; GR 26, 54–56, 58–59, 74; H 12, 14; HK 1 ff.; HR 1 ff.; I 44; IRE 6, 14; LV 5, 11, 16, 53– 56; N 6–9, 35; NL 11, 20, 27–30, 33, 42; P 13, 38; PL 22–24, 28; ROM 80; S 4–5, 8, 10, 15–17, 19–23, 26, 28, 49, 62; SK 3–4, 6, 25, 40 defamation A 58, 60–61, 63–64; B 17, 19, 22–23, 59, 61; CZ 45; D 11, 13; EST 2, 6, 24, 26–28; EW 32–34, 36, 46; F 22, 24; GR 33, 37; H 27–28; I 40; IRE 32, 34; LT 16; LV 6, 8; P 40, 50, 53–55; ROM 86; S 36 defect A 39, 51; E 48–50, 55; EU 8, 12, 14, 17; EW 10; F 9, 32, 34–35; GR 74; LT 61–62; NL 38; P 13, 21; PL 42, 45, 49, 52, 57; ROM 49, 54–55, 68–69, 95 defences E 51–52; EU 26–27; EW 27, 32–33; GR 24–25; H 18–20; IRE 14, 29, 32, 34; LV 50; P 21; PL 9, 82; ROM 31–34, 36, 40, 42, 44, 46, 51–52, 76 disability A 5–6, 8, 13–16, 19, 21–22, 51, 56; B 38, 94; CR 10–11, 13–15, 33; CZ 29, 39, 61; D 2, 26–27, 41; E 7, 23–24, 31, 35–36, 41, 44; EST 18, 43; F 12–13, 15–17; GR 42–43, 45– 46, 48–53, 68, 70–71, 77; H 26; I 30, 34, 37, 53, 58; IRE 3, 23; LT 5, 8; LV 5, 26–27, 29, 31; N 10; NL 38–39; P 17–18, 57, 60, 63; PL 42, 45, 55–56, 59, 72; S 44; SLO 23, 31, 38–40 discrimination A 19, 21; D 1–3, 46, 49, 61; GR 32–33; H 4; LV 6; P 17–19, 27; PL 86; S 3, 45–51, 53, 55–56, 58–60, 62, 65; SK 41; SLO 16 disfiguration GR 43, 46, 49–52, 68, 77; LV 5, 9, 27, 31 dolus eventualis E 40; GR 80 drugs CR 6; CZ 9; P 20–21; SK 13, 22–23 duty legal ~ CH 16; CZ 12, 36–37, 110; D 22, 42; GR 30; ROM 6 of prevention CZ 6, 8 to inform A 6, 10–11, 18, 40, 45, 47, 49–50, 91; B 4, 40, 42, 93; CH 9, 29, 31; CR 25–26; D 11, 38, 40–44; E 11, 33, 42–43; N 12, 21; P 47; PL 51, 53
Index to mitigate loss CH 46; EST 34; FIN 22 to warn D 43; NL 16 to supervise A 89; D 22, 28; E 46; EST 44; IRE 12; LT 41; N 22; NL 36, 53; P 72; ROM 43, 87 duty of care A 43; D 22; EST 26, 30–31; EW 11–19, 27, 43; IRE 6–10, 29; NL 23, 47; P 6, 72; PL 53, 65, 67 earning capacity A 15–17; CR 5; D 34, 48; GR 42–47, 49–52, 68, 77; I 34; IRE 3; N 6, 10–11, 16; P 59–60, 65, 67 ECHR, see human rights emotional harm, see psychological harm employees’ liability B 17–18, 20, 24; CZ 3, 6–10, 12; EST 15; F 43–44, 47; FIN 27; SK 21–24 employers’ liability B 20; CR 21, 23; CZ 3, 11–14; EST 16; EW 11, 22, 26; F 43–44; GR 81; I 20, 28, 57, 61; IRE 3, 13, 21–22; LT 68; NL 4, 16–22, 24, 26, 53; ROM 47; SLO 26, 28 immunity, see civil immunity enterprise liability A 78–79; CH 14–15; DK 20; E 46; IRE 28; LT 21–28, 44–45 environment B 84; D 14, 23, 49; E 15– 18, 56; EW 16, 44; F 42, 46; GR 7, 84; H 2, 5, 15–17; I 11–14, 16–17, 19, 63; P 3, 70; ROM 70 environmental liability B 82–83, 86–88; E 18, 56; EU 5; EW 44; I 11, 16; LT 71–73; NL 40; ROM 70 equal treatment of men and women D 2; GR 46; H 4; ROM 43; S 45 European Court of Justice CR 3, 36; D 2–3, 46; DK 23, 26; E 49; EU 1, 9, 13, 20, 24, 26–28, 31–33, 35, 38, 40–41, 43; F 10–11, 50; IRE 35; LV 30, 57, 59; N 18 evidence A 40, 42–43; B 6, 93; CR 8; D 41; DK 17; E 12, 33, 43; EST 20; EU 43; EW 6, 8, 38, 48; F 17; IRE 2, 26–27, 33; LT 30; NL 38; PL 57; ROM 28, 43, 67, 83; S 11, 19, 53; SK 31, 33; SLO 37 expert CH 3–4, 12, 42; D 44, 50; E 51; EST 18, 20, 22; EW 17, 19, 33, 48; F 3, 53; H 30, 34; IRE 27; NL 45, 52; P 14; PL 92; SLO 21
Index witness CZ 69, 71, 82; D 41; DK 10; EU 32; IRE 26, 33; NL 22; PL 57; SLO 23, 39 family life CR 12; CZ 45, 94–96, 98, 101–102; ROM 85; SK 40 family of the victim, see persons close to the victim fault A 4, 44, 61, 79–80; B 4, 7, 17, 20, 22, 31–32, 34, 38, 49, 51, 54–56, 59, 63, 65–66, 70–71, 81, 89, 93; CH 11, 23, 25; CZ 7, 32, 39, 74; D 22, 45, 49, 51; DK 6, 8; E 23, 29, 40, 43, 45–46, 50–51, 53; EST 5, 15, 31, 36, 38–39, 41, 43–44, 46; EU 8–9, 12, 43; EW 48; F 20, 22, 25–26, 28, 33, 41, 44–45, 47–49; GR 21, 29–31, 34, 38, 70, 73–74; H 5, 7, 9, 11, 13–14, 23, 25; I 15, 28; LT 4, 7, 14–16, 19, 26, 30–31, 39, 44; LV 41, 43, 46–48; NL 15, 38; P 7, 25–26, 32–33, 35–36, 43, 59, 69–70, 72; PL 7, 11, 29, 35, 48, 53, 61, 64, 92; ROM 2, 6, 11–12, 20, 24–27, 31, 37, 39, 41, 43, 46, 49, 51, 56, 59, 66, 70, 76–77, 90, 92, 95; SK 16, 20; SLO 18, 21, 26 fear EW 8, 11, 29; H 5; IRE 37; LT 6; LV 5; N 2, 9, 18; SLO 24 flexible system A 73, 78, 80; D 51 force majeure A 2, 75; E 19; EST 31, 33, 35–36; F 26–27, 29–30; GR 25; P 25; ROM 37–38, 40, 51, 94; SLO 22 foreseeability A 73; B 71–72, 79–80; CZ 79–80; D 22, 50; EST 31, 33; EW 8, 11, 14, 18, 26–28; F 25–28, 30–31; FIN 24; H 2; IRE 7, 9; N 3; ROM 7, 15, 41, 58 fraud B 2–3, 49; CR 37; H 27; LT 34, 39, 42, 45 freedom of expression A 60–62, 64; B 50, 53–54, 57, 61, 89; D 12–13; EW 36–38; F 21–22, 24; H 28; I 40; P 52, 55; ROM 86 freedom of the press B 19, 22, 25, 27, 29, 61; D 9; EW 35; F 22–23; IRE 34 funeral expenses SK 34, 36 genetically modified organism CH 10; D 1, 4; EW 10; H 5; SK 17–20 good faith D 56; EST 14; GR 24, 41; LT 7, 16, 25; P 47
565 harmonization of tort law B 88; EU 4; F 40, 50; N 37–38; S 1; SLO 42 health A 16, 18–19, 22; B 42, 94; CH 10; CR 5–6, 14, 16; CZ 4, 38, 62, 65–67, 69, 71, 73, 76, 98, 100, 103, 110; D 4, 22–25, 37, 40; E 23–24, 29, 31, 35–36, 41–44, 46, 54, 57; EST 6, 14; F 47; EU 17, 23; EW 4, 8, 44; GR 42, 50, 68, 70–71, 84; H 24, 26; I 37, 56, 58, 61; IRE 4, 27; LT 11–13, 15, 20, 64–67, 69; LV 8, 11; N 6, 10, 16; NL 24; P 17–18, 21, 24, 27, 32; PL 47, 60, 63–64, 71; ROM 33, 63–64 HIV P 24, 28, 30–32, 36 holidays D 23; I 23, 40 homicide, see death human rights A 52, 60; B 52, 59–61, 63, 67, 69; CR 7; CZ 27, 45, 48–52, 54– 56, 58, 100, 107; D 31, 33; EST 1–5, 7, 9, 46; EW 34, 36–37, 39, 41–42, 45; F 14, 17–18; GR 39–40, 79; I 38, 40, 49, 51–52; LV 6; NL 52; ROM 65, 86; S 68; SK 40; SLO 1, 2, 5, 41 illegal, see wrongfulness imprisonment CZ 26, 40, 42, 45, 51; D 30–31; EW 29, 40, 44; H 27; IRE 5; S 20, 32, 36; SK 14–16; SLO 32–34 indirect loss, see damage, indirect ~ information, see duty to inform injunction A 58–59; D 9, 11; EU 30–31, 34–35; F 32–33 injury bodily ~ CZ 71; D 27, 48; E 7, 37, 57; EST 10, 13; EW 7, 18, 26–27; F 34; I 53; LT 14; LV 11, 16, 54; N 16; P 10, 56; PL 60; ROM 61, 85; S 5; SK 2–5, 7, 9–10; SLO 20, 23–24, 26, 29, 38–39 permanent ~ D 34, 41; E 44; GR 42, 44; I 30; P 27, 57, 63 personal, see personal injury serious ~ A 15, 28; CR 32; D 27; E 47; EST 10; F 46; FIN 12; H 9; LT 5, 13; LV 11, 16; P 10; S 6, 8, 14–16, 19, 26; SK 4; SLO 23, 38 insolvency CH 31; CR 37; CZ 30–33; EU 14, 16, 40; EW 2, 20, 24; F 44, 46; H 1–2; LT 19, 21, 26, 28, 34–35, 39–40, 42; LV 55; NL 7, 36 insurance A 2–3, 72, 92, 102; B 4, 15, 31–33, 70, 73, 85, 90; CH 2–9, 34–
566 37, 39, 44, 48, 50–52; CR 6; CZ 3, 15–16, 34; D 24–25, 27, 29, 62; DK 16; E 4–7, 10, 22, 29, 31–32, 35, 37, 44–46, 54–55, 59–60; EU 10, 16; EW 2, 20, 23–24; F 19, 52; GR 45, 68; H 3, 30; I 63; IRE 2, 6, 28; LT 67–68; LV 26, 57, 59–60; N 2–3, 6–9, 18–19, 25, 35; NL 1–2, 7–9, 38, 40–41, 49, 53–54; P 16, 18, 59; PL 23, 29–31, 33; ROM 15, 72; S 67–68; SK 12 compulsory ~ B 5–6; CR 6; E 19, 22; EST 46; GR 59; LV 57–58; NL 8, 16; P 1–4, 8, 16, 23, 72; ROM 72 liability ~ see liability insurance intellectual property D 14–16, 49, 63; E 12–14; H 32; LT 1–4, 21–22, 24, 29–33, 74–76; LV 6; P 70; SK 41; SLO 18 intent A 8, 67; B 17, 90; CR 28, 32, 35; CZ 9, 12–13; D 13; DK 17; E 46; EST 34, 36, 48; EU 42–43; EW 29–31, 40–42, 45–47; F 16, 24, 43, 45–47; GR 8, 25, 29–30, 37, 56; IRE 11–14, 23; LT 2, 14–15, 30, 51, 54; LV 11, 20, 26; N 7, 17; P 10, 50, 70–71; PL 61, 64; ROM 11, 26, 35–36; S 6, 12, 14–15, 19, 21–26, 28, 58–60; SK 2, 23; SLO 35, 37 interest EST 10; LT 34, 39, 41, 47; P 46, 50, 58; PL 39; ROM 81 internet H 32; I 6; L 76 intoxication CZ 9; EW 50; GR 26–27; IRE 29; N 15; S 20–21, 23, 34; SK 22–23 invalidity, see disability jury EW 32; IRE 11–14 justice CZ 22, 43, 56; D 43, 50; E 28; EST 28, 43; EW 14–15, 21, 23–24, 46, 48–49; F 53; GR 41, 59; H 20; I 62; IRE 19, 24; LT 7, 16, 25; LV 10, 34; N 28, 35; NL 39; PL 21, 86; SLO 2–4, 8, 39 lawyers B 81; CH 48; CR 1, 3; D 45–46, 64; E 53; EST 28, 48; EW 31, 46–47; F 4–5, 8; FIN 25; GR 37, 41; NL 27, 37, 41, 46, 52; PL 11; S 1, 44; SK 42; SLO 1, 4, 8, 32, 35–37 legal person B 1, 4, 14–15, 89, 92; CH 5; CZ 37; D 57; E 2, 6, 25; GR 2, 30–31,
Index 72; LT 25, 34, 43; LV 55; N 2–3; P 40; ROM 30, 83, 91 liability contractual, see contractual liability for other persons A 2–3, 73, 76; B 2–4, 27, 90; CZ 12–13, 35–37; D 22; DK 2, 4; E 19, 22–23, 45–46, 73, 76; EST 15, 17, 43–46; EW 2, 45, 50; F 6; FIN 27; IRE 11, 21–22, 24; NL 7; P 4; PL 51, 53, 66, 92; ROM 29–30, 38, 40–42, 45–47, 66, 72, 75, 87, 89, 90–93 for things A 2–3; CH 26; CZ 11; DK 3, 6, 11; E 50; EST 30, 35–36; F 25– 26, 34; NL 12; P 25, 28, 33, 47; ROM 13, 30, 40, 48–49, 51–54, 72, 93–94 insurance B 5–6, 73, 81; CH 34, 39; CR 6; E 22, 59; GR 59; H 37; LV 57; N 2; NL 16; P 1–4, 8, 16, 23, 72; ROM 56, 72 joint ~ B 15; LT 22; ROM 3, 38, 66, 92 joint and several ~ A 44; CR 18–19; E 19–20, 23, 28, 38; EST 15, 30; EU 11; EW 2, 20, 22–25; F 3–5; GR 30– 31; LT 22–24, 27, 29, 40; N 27; P 4; PL 11, 50; ROM 7, 43, 92 restriction of ~ A 3, 48, 75; B 23, 53; CR 21; D 36; DK 14, 17; E 23, 34; EW 5, 20, 46; F 26, 45–47; GR 3, 24–25, 30; H 19; LT 9, 61; N 22; NL 14, 16, 36; P 5, 21; PL 33; ROM 94; SK 16; SLO 7 solidary ~ see liability, joint and several third party ~ EW 50; LV 57 liberty B 73; D 12; EST 6; GR 9; LV 6, 8, 10; ROM 25; S 36, 66; SLO 33–34 limitation A 4; CR 36; CZ 23–24; D 30, 44; E 16; EU 19–20, 23; F 11, 37; GR 14, 59–64, 80, 82; I 8; IRE 21–23; LV 18; NL 34, 46; P 30; PL 1–3, 48, 76, 78–84, 86–90; ROM 73 liquidation, see insolvency litigation A 43, 62; B 14, 19, 62, 92; CH 11; CZ 88; D 11, 14, 50; E 31, 37, 41, 47, 59; EST 2, 4, 10, 37; EU 9, 14; EW 7, 15, 26, 32, 34; F 9–11, 19, 33, 35, 39, 41; FIN 11; GR 10, 13, 34, 38, 47–48, 53, 59–60, 66, 77; I 8, 17, 20, 56, 61; IRE 2–3, 20; LT 46; N 6; NL 12, 22, 32; PL 6, 11, 43, 50, 63; ROM 4, 6–7, 72, 74; SLO 1, 17, 31–32
Index loss of amenities of life GR 42–53 of chance B 41–45, 78, 93–94; CR 18, 23–26; E 42–43; EW 48; H 26; I 20, 30, 32; IRE 36; P 69 of earnings A 15, 68; CZ 29, 39, 43; D 35–36, 48; FIN 5; GR 50–51; I 20, 56; LT 67; CR 5; N 3, 6–8; NL 33; P 63, 65; PL 51, 55, 63; SLO 35 of profit B 7; CZ 9, 26, 53, 60, 79, 83; GR 50–51; IRE 6; LV 51; N 2–3; PL 30 lump sum B 16; CZ 17, 62; D 5; E 35; EST 10; GR 68; LV 19; ROM 38; SK 2; SLO 10–12 maintenance A 5–6, 8–9, 13–14, 18–19, 21–25, 65–69; CR 13–14, 16; CW 1 ff.; CZ 17, 29; D 7, 48; E 35; EST 10, 30–31; F 32, 36; FIN 2; LV 54; NL 31; PL 28, 52, 55, 59, 63–67, 69–70, 72–74; ROM 14, 80 manager’s liability B 15, 89, 92; CH 18, 28–29, 46, 48–49; CR 37; CZ 82, 84, 90; EST 47–48; F 42–44, 46; GR 8, 30, 72; H 1–2; I 7; LT 21–23, 25–29, 36, 38–40, 42, 45; P 7; PL 50 marriage CR 28–31; E 3, 57; GR 42, 54–56, 58; I 5; PL 26 media B 19, 22; D 8–13, 17–18, 65; EST 24; EU 7; EW 32–33, 35, 37–38; F 22–24; I 7; IRE 34; N 19–20; P 19, 50, 52; ROM 86; SLO 13–17, 32 medical expenses D 27, 29, 35, 48; E 46; PL 51 medical liability A 6, 40; B 94; CH 24; CR 23, 26; CZ 35, 62, 68; D 44; E 34–35, 42, 46, 51, 55, 60; EST 21, 23; EW 48; GR 70–71; H 25–26, 33; IRE 26, 28; NL 27, 37; P 24; PL 47, 50–51, 53, 66, 69; ROM 72 medical malpractice A 4, 45; B 62, 94; CH 24; CR 23, 26; D 41–42, 44, 66; E 24, 29, 41, 43, 46, 49, 51; EST 18, 21–22; EW 4, 48; F 15–16, 19; H 24; I 47; IRE 5, 25, 28; NL 37–38; PL 61, 67 medical treatment A 10, 26, 45, 49; B 40– 47; CR 25–26; CZ 26, 61, 70, 92, 96, 99–103, 107; D 3, 29, 35–38, 41–43; E 31, 33, 46, 51; EST 10, 18–23; EW 4, 26; GR 42; H 24; I 46–47; IRE 25;
567 N 11; P 12–14, 27, 57; PL 23, 47, 51; ROM 85; S 4; SLO 39 mental shock A 28–29; CZ 76; GR 42; LT 16; LV 5; PL 23; S 3, 7–8, 10, 13, 17–19, 25, 65 military service CZ 40; D 46; EW 29, 44; GR 44; PL 83, 85, 90 mining PL 93 minors A 5–6, 8, 11, 13–14, 18–24, 26, 65; B 32, 36, 61, 73, 90, 94; CH 16; CR 4–5, 10–16, 24, 33–34, 38; CZ 71, 73, 75–76, 92, 94, 103, 107; D 7, 11, 20–22, 27–29, 58; E 8, 10–11, 19, 23–24, 31, 34–36, 41–44; EST 10, 43–44; EW 50; F 12–16, 25; GR 45, 50, 56, 70–71; H 12, 24, 26, 34; I 1, 3–4; IRE 23–24; LT 17; LV 8; N 35; NL 7, 33, 39; P 8, 12–13; PL 3, 22–24, 28, 49–50, 52, 55–57, 59–60, 63–65, 67–74, 92; ROM 14, 28–29, 41–44, 80, 87–89; S 6, 8, 32–40, 43, 56; SK 3, 5; SLO 38–39 motor insurance EST 30; GR 59; LV 26, 57–58; N 16–18; P 56 motor vehicles A 2, 26, 65; B 31, 34, 70–72, 80; CZ 71, 75–76; D 47; DK 5, 7, 9, 19; E 1–2, 20; EST 30–31, 37–38; F 53; GR 17–18, 23–24, 26–27, 42–43, 54, 59, 61; H 9–10; LV 25–26, 29, 35, 40, 57–58, 60; N 6, 15, 17–18, 22; P 22, 42–44, 56, 63; PL 29–30; ROM 72, 91; S 20–21; SLO 23–25, 29, 38 multiple tortfeasors CZ 10; D 45, 68; E 23, 58; EST 41; N 27 negligence A 65; B 2, 4, 7, 24, 26, 42, 44, 54, 57, 62–63, 67–68, 94; CH 14; CR 12; DK 4, 8, 15, 21–22; E 19, 22, 24, 35, 38, 40, 42–44, 46, 50, 60; EST 34, 36, 44; EW 2, 4, 6–8, 14–15, 31, 44– 47; F 15–16, 24, 46; FIN 5, 12; GR 23, 25, 42, 59; I 14; IRE 5, 6–7, 9–12, 21, 23, 25–28, 32, 37; LT 2, 17; N 12, 17, 22; NL 7, 37; P 31–32, 35; PL 5, 51, 54, 61; ROM 11, 24, 26, 36, 59; S 12, 21, 23–25; SK 18, 22; SLO 18, 22 gross ~ B 2–3, 17, 49; DK 17, 20, 22; EST 34, 36; F 24, 47; LV 57, 60; N 18; ROM 36, 75; S 12, 21, 23–26 neighbours B 7–8; DK 12; EU 31, 35; H 5, 18; IRE 8, 10; N 27
568 nervous shock, see mental shock non-pecuniary loss A 13, 20, 23–26, 29, 52, 55–56, 93; B 77; CH 38; CR 15, 27, 31–33, 35; CZ 18–23, 43, 45–46, 50–51, 53, 56, 58, 97; D 3, 17, 45; E 24, 27, 29–30, 56–57; EST 5–6, 24, 37, 41; EW 42; F 12–13, 52; GR 2, 9, 11, 33–34, 37–39, 41, 51–52, 59–64, 70–71, 75; H 18, 22–23, 25–26, 34; HR 1ff.; I 9, 18, 20–23, 25–26, 28, 37–40, 43–45, 49–51, 54–55; LT 6–20, 30, 64–66; LV 1–11, 22–31, 33, 45, 49, 53–56; N 35; NL 6, 27, 51–52; P 19, 27, 39–41, 50, 59, 64, 66, 68, 70–71, 74; PL 42–44, 46–48, 50–51, 53, 63–64, 71, 92; ROM 16, 63–65, 73, 83–86, 96; S 6, 11, 20, 22, 28, 30, 35–36, 49, 56, 65; SK 6, 8, 36, 38–40; SLO 8, 21, 38–39 notaries B 81; CZ 18; EST 46; GR 37 nuclear liability B 84; EU 30; P 20; PL 83; ROM 71; SK 11–12 nuisance B 7–8, 11; DK 11–12; E 16, 55; EU 30, 33–35; H 18; IRE 12, 23 occupational diseases B 16; CZ 3, 15– 16, 34, 39; EW 2, 6–8, 11; I 56; LT 67–68; N 6; NL 16, 18, 22, 24, 26; SLO 9–12 omission A 6, 51; B 42, 67–68; D 11–13, 22; DK 17; E 38, 46; EW 49–50; GR 8, 13–14, 24, 30, 60, 62, 64, 72, 74, 76, 81–82; H 4, 14, 26; I 61; IRE 12; N 12; P 7; PL 14–15, 18–22; ROM 21, 25 pain and suffering A 18, 20, 24, 26–28, 39, 51–56; B 19, 77; CR 10, 20, 26– 27, 33; CZ 17, 61–62, 71–72, 92; D 21, 23, 30, 35, 48, 50, 69; DK 19, 21– 22; E 23–24, 30, 35–37, 42, 47; EST 11, 18; EU 4, 17; EW 3, 6, 8, 11, 15, 18, 24, 26–27, 31, 47; F 34, 46; FIN 2, 22; GR 6, 21–23, 27, 38, 42–45, 50, 55–56, 58, 70–71; H 14; I 5, 18, 28–29, 31, 34, 44–45, 47, 56; IRE 3; LT 6, 13–14, 16, 20; LV 3, 5, 7, 9, 11–12; N 6, 16; NL 12, 27, 39; P 40, 50, 57, 63, 69; PL 23, 38, 42–45, 49; ROM 13, 73, 85; S 4, 8, 11, 14, 17, 19, 25–26, 30, 41, 44, 63; SK 2–3, 6, 40; SLO 20, 23–24, 26, 29, 31, 38
Index parents’ liability B 73, 90; CR 5; D 24; E 11, 19, 23; EST 44; I 3–4; NL 7; ROM 42–44, 87, 89 pecuniary loss A 13, 19, 23–24, 52; CH 38; CR 13–15; CW 1 ff.; CZ 20, 22, 45, 47, 50, 58, 71; D 3, 21, 45; E 27; EST 37; F 52; GR 50, 52, 60, 63; H 23, 25–26; I 5, 14, 18, 20, 28–29, 37, 43–44; LT 2, 7, 9, 16; LV 22, 25–26, 30, 33, 45, 49; N 34–35; P 10, 19, 57, 59, 63–65, 70, 74; PL 42, 50, 54–55, 59, 64, 71, 86, 88; ROM 62, 80, 82– 83; SK 36; SLO 18, 21, 33, 38 periodical payments A 15–17, 33, 37; B 11, 16, 38; CZ 8, 17, 26; E 34–35; EST 10; F 5; GR 82; I 20, 56; LV 15; P 60–61, 63; PL 28, 56, 63, 67; ROM 58, 61; SK 6–7, 15, 20 personal injury A 94; CH 37, 40; D 6, 48, 70; DK 19–22; E 4; EU 4; EW 7, 9; F 52; FIN 2, 22; I 46, 53, 56; IRE 1, 3, 11–12, 23, 25; LV 5, 11, 53, 60; N 26; NL 1, 22, 27, 39, 46, 52; P 74; PL 1–3, 33, 44, 46–47, 52, 60, 64, 76, 82–83, 85–86, 89, 92; SK 13 personality rights A 55, 58; B 61; CZ 45– 46, 95–107; D 9, 15–20; E 27; EU 7; EW 46; GR 33–37, 55; H 23, 28–29; I 9, 20, 22–24, 30, 34, 37–38, 40–42, 44–45, 54–55; LT 64–65; LV 6; N 20–21; P 53; PL 63; ROM 63–64, 68; SK 40; SLO 5, 15, 33 persons close to the victim A 26, 28–29, 65, 68–69; B 91; CR 12, 27–29, 32– 33; CZ 17, 46, 71–73, 75–76; D 7, 15–21; E 2, 35–36, 41; EST 10; EW 26, 29; F 25, 30; GR 37, 45, 54–59, 74; I 44; LT 64–66; LV 5, 8, 53–56; N 6, 8; NL 6, 15, 28–30; P 13, 30; PL 23–28; S 4–6, 8–9, 11, 15, 17, 19–22, 25–27, 30, 34; SK 40; SLO 38–40 perte d’une chance, see loss of chance pharmaceuticals CR 6; P 23; ROM 72 police D 17, 30, 34; EW 44; GR 42; H 27; LT 6, 21; N 15, 17–18; P 5, 42; PL 85; ROM 34; SLO 32 post-traumatic stress disorder A 26, 28; CZ 71, 76; D 21–22; EW 26–27 precautionary principle F 48; I 63; NL 40 prescription, see limitation press, see media
Index presumption of causation B 93; LV 9; S 47–48 of fault EST 38; LV 47; P 7, 43; ROM 37, 41; SK 16 Principles of European Tort Law A 71; CH 13; CR 1, 19, 22, 27, 36; CZ 47; D 51; E 30; EW 23; F 6, 47; N 5, 31, 38; SLO 42 privacy B 59, 61; CZ 94–96, 98, 101– 102, 106–107; D 8, 46; E 10; EST 6; EU 7; EW 37–39, 43, 46–47; F 51; GR 1; IRE 22, 32, 34–35; LV 6; N 20; ROM 86; SK 40; SLO 5 product liability A 95; CH 25; D 72; DK 1–2, 4, 23, 26; E 47–49, 53; EST 1; F 9–11, 50–51; LT 60–63; NL 45; P 21; PL 42–43, 92 professional liability A 96; CH 34; CR 49; D 24; DK 24–25; E 22, 35–36, 41; EST 21, 46; EU 1, 5, 8–12, 14–15, 19, 21–24, 26, 28; GR 8, 30–31; H 35; I 7; LT 21–29, 34, 38, 42, 45; P 31; PL 50; ROM 54–55, 68–69; SLO 19, 21 property damage A 97; CZ 79, 110; DK 10–11; E 2, 4; EST 30; EU 27; EW 10; H 16, 18–19; IRE 10; LV 26; NL 12–14; PL 26, 86; S 8 proportionate liability CR 18; EST 6; EW 1–3, 5, 20, 22–23, 48; FIN 21–22, 24–25; GR 39–41, 79; LV 32; N 38; NL 1, 22–26, 37, 51–52; P 25; ROM 37, 59, 86, 94 protected interest A 31; D 44; EW 45; GR 20–21, 56; H 28; I 22, 40, 50, 53–54; LT 12; LV 10, 50; NL 22 protective purpose A 63; CH 5; CR 28; D 9; GR 5, 20–22, 58; I 49–50; PL 25; ROM 21, 56, 70 proximity EU 21; EW 14–15, 18, 26–28; IRE 7; N 3, 31 psychiatric injury A 6, 26, 28–29; CR 15, 24; D 17; EU 17; EW 8, 27, 31, 41; H 24, 26; IRE 21, 37; NL 39; ROM 29; S 3–4, 6, 20, 23–24; SK 5; SLO 23, 40 psychological harm A 11, 26–27, 55–56; CR 32; CZ 98; D 17, 48; EW 11, 26–27, 29–31, 40–41; F 20; GR 44; I 30, 34, 37, 53, 56; IRE 21, 23; LT 6, 16; LV 3, 5–7, 9–10; NL 19; P 27; PL 45; S 6, 8, 25, 30; SK 34, 40; SLO 24, 29, 33, 38–40
569 public liability A 95, 98; B 49–50, 54–59, 66, 69, 88; CH 26; CZ 18, 20, 22–28, 42, 51, 56, 58, 82, 84–91, 113; D 27–29, 76; DK 9, 15, 24–25; E 41, 51; EST 46; EU 42–43; EW 40, 43– 45, 50; FIN 4–7, 27; GR 74; H 36; I 17, 62; IRE 21–22, 24; LT 57–59; LV 11–23; N 11–14, 22, 24; NL 48; P 10, 21, 25, 30, 32–33, 35–36, 50; PL 11, 18–19, 36–38, 40–41, 50–51, 63, 84–85, 91; ROM 74–75, 77, 96–97; SLO 7, 33–34 punitive damages CR 35; EW 40–41; I 7, 29; LT 4, 31, 33; P 41, 70–71; ROM 56; S 30, 41; SLO 41 pure economic loss A 77; B 9; CR 15; EW 10, 14, 43, 46–47; F 41; H 5; N 4, 26, 29–30, 35; NL 27; P 69, 73; PL 30; ROM 62 railways D 78; DK 19–22; E 7, 23; F 25, 30–31; GR 23–25; I 20, 56; N 2 rape CR 14; D 11; P 63, 69–70; S 32, 35–37, 39–40, 42–44, 49, 62; SK 4, 6, 8 recourse A 34; B 32–34, 39, 79; CZ 14; D 48, 73; DK 2; EU 8, 11; EW 2, 24; I 18; IRE 15; LT 22, 47; N 25; NL 21, 34; P 32, 61; ROM 15, 92; SK 10 recklessness DK 17; GR 26; IRE 14; NL 21; P 4 redress, see recourse relationship special ~ EW 14; IRE 7, 10, 24 remedies D 33; EST 48; EU 38; EW 21, 41–42; F 23; H 20, 23, 29; I 4–5; LT 12, 56; LV 45, 49–51, 54; ROM 60 restitution in kind CZ 8, 13; E 29; EU 5; GR 66; H 22 reversal rule, see burden of proof, reversal of the ~ risk A 6, 10, 40; B 48; CH 9, 34, 36; CR 18–22, 24, 26, 37, 54; CZ 62; D 37– 43; DK 14; E 4, 6–7, 18, 39, 42, 54; EST 34, 36; EU 14, 16; EW 1, 3, 6–8, 20, 22–24; F 16, 44; FIN 21, 23; H 5, 10, 13, 24–26, 37; HC 1 ff.; I 63; IRE 4, 10, 14, 63; N 2, 5, 28; NL 9–10, 18, 22–23, 40; P 17–18; PL 85 assumption of ~ CH 22; E 39–40 ROME II EU 3–4, 6–7, 34
570 safety at work ~ F 47; IRE 4 of premises ~ D 21–23; DK 5, 7; EST 10, 30–31, 33, 35; GR 11–12, 32, 74, 80; IRE 10; PL 93; ROM 95; SK 25, 28, 31 of roads ~ E 39; NL 20 scientific state of knowledge A 47; CH 27; E 51; EW 2; ROM 54 self defence, see defences service providers, see internet sexual abuse B 77; IRE 11, 21, 23; LV 6, 11, 16; S 3, 32–34, 36–37, 39, 43, 65; SK 4, 6, 8 shortened life expectancy P 27, 65–67 smoking A 99; CR 21; I 56, 61; NL 22– 23, 26 social security A 15; B 79; CH 38–40, 50; D 3, 27, 48, 74; E 36; N 10–11, 13, 28; PL 25, 42, 56 social services EW 44 solicitors, see lawyers sports A 100; CZ 109–110; D 75; E 39–40, 55; EW 50; GR 75; NL 11; P 43–44; SLO 40 standard of care A 12, 79; B 17; CZ 4, 61; D 21, 23, 28, 33, 38, 42; EST 20, 22, 26–28; EW 1, 33; FIN 16; GR 15; H 8, 20, 30; IRE 14, 24, 29; N 22–24, 29–32; NL 37; ROM 11, 19–20, 25, 39; SLO 21, 27 standard of living CR 10; EU 4; GR 42– 45; I 23, 34–35, 37, 43–45, 47; P 10, 27; PL 24, 28 state liability, see public liability statutory duty EW 2, 18; H 18; I 56–57; LT 57; PL 28; SK 10 breach of ~ CZ 110; EW 2, 45; H 9; I 14–15, 56–57 sterilisation A 18–19; CR 16; CZ 92, 94 strict liability A 2–3, 73, 79, 101; CH 14; CR 5; CZ 12, 32, 35, 65–66, 74; D 4, 49, 51, 77; DK 12, 15, 20–22, 24; E 19, 40, 46, 48, 50–51; EST 36, 39, 44; EU 8, 12, 42; EW 45–47; F 9, 25, 28; FIN 27; GR 31; H 5, 13; LT 49, 54; LV 47; N 2–3, 17; NL 7; P 4, 25–29, 32–33, 35–36; PL 38, 92; ROM 69; S 12, 24; SK 16, 25; SLO 7, 22, 26 subcontractor EST 3; F 32, 34; N 27; NL 20
Index tax D 26, 47; DK 25; EW 12; LT 21, 45; PL 25, 35–39, 41 terrorism CR 6, 30; E 1, 2–7; EW 31–32 theft CH 47; DK 5, 7; GR 11; H 6–7; LT 5; NL 7; ROM 93 third party A 2, 17, 19, 77; B 2, 15, 25– 26, 30, 38, 61, 89, 91–92; CH 42; D 18, 20, 23, 37; E 35, 46; EST 30, 43; EW 50; F 33–35, 37–41, 43–44; GR 18, 24, 66, 72–73; H 8, 37; I 19; IRE 6, 8–10, 15, 18–19; LT 25, 27, 29, 31, 36, 40, 64–65; LV 55–57; N 3–4, 25; NL 15; P 4, 24, 56, 69, 73; PL 8, 30, 32, 40; ROM 15, 37–38, 47, 51, 94; SK 33 tort law reform A 1, 70–73, 79, 81–82; CH 2–4, 7, 11–13; CR 6, 30; E 3, 6–8, 12, 14, 21, 29, 59; EW 5; F 1–2; H 4; I 11; IRE 34; NL 8 translation CH 1, 49; EST 46; F 1–5, 7–8 travel agencies D 21–23; E 55; I 40 trespass IRE 11–14, 23 unfair competition D 79; E 13; EU 39– 40; ROM 68, 73 unjust enrichment B 49; CZ 4; EW 47; GR 10, 39; H 20 unlawfulness CR 14; D 31; EST 3, 15, 26–28, 30, 43, 48; EU 39; EW 18, 29– 31, 42, 47; GR 10, 13–15, 20, 33, 36, 61–63, 76; H 4, 20; I 22–23, 34; LT 57–59; LV 8, 29, 46, 48–49; P 4; PL 11, 13, 39–40, 63, 67, 74, 91; ROM 12, 18–19, 26–27, 96; SLO 33 VAT (value-added tax) D 47; EW 12; LV 38, 40, 42 Verkehrssicherungspflichten D 22 vicarious liability, see liability for others violence acts of ~ E 5; GR 9–10; H 12; LT 5, 12, 14–15, 20; LV 11, 20; NL 7; P 9–10; S 14–15, 19, 26, 28, 32, 37–43; SLO 2 vis maior, see force majeure volunteers B 1–5, 91; PL 30, 32 work accidents A 76; CZ 3, 15–16, 34; D 24–26; EST 10–13; EW 26–28; SLO 26–28 wrongful birth A 8–9, 13, 21; B 94; CH 16; CR 10, 12–14, 34; CZ 112; E
Index 35; F 19; GR 70; PL 52, 54, 58, 66, 71 wrongful conception A 18; CR 10, 12, 16–17, 34; PL 71–72 wrongful death, see death wrongful life CR 10–15, 34; CZ 112; E 35–36; F 12, 19; GR 70; H 26, 34; NL 37–38; PL 52 wrongfulness A 4, 31, 63; CZ 18, 22, 27–28, 42, 45, 48, 51, 63, 66, 73–76,
571 84–86, 89–90, 94–95; EST 6, 15, 38; EW 22, 24, 49; F 19; FIN 5, 8, 12, 31; GR 13, 19–22, 30, 33–34, 36–37, 60, 64–66, 70, 74, 81; H 1, 15, 29, 31; I 6–7, 9, 63; LT 3, 12–13; LV 6; NL 13, 22, 36, 48; P 19, 38, 40–41, 55, 72–73; PL 5, 7, 11, 15, 21, 45, 70, 72, 91–92; ROM 6, 9–13, 19–22, 25, 31, 43, 56–58, 61, 73, 76–77, 83, 90; SLO 18, 34
Publications Principles of European Tort Law Volume 1: The Limits of Liability: Keeping the Floodgates Shut. Edited by Jaap Spier. Kluwer Law International, The Hague. Hardcover. ISBN 90-411-0169-1. 1996, 162 pp.
Volume 5: Unification of Tort Law: Damages. Edited by Ulrich Magnus. Kluwer Law International, The Hague. Hardcover. ISBN 90-411-1481-5. 2001, 225 pp.
Volume 2: The Limits of Expanding Liability. Eight Fundamental Cases in a Comparative Perspective. Edited by Jaap Spier. Kluwer Law International, The Hague. Hardcover. ISBN 90-411-0581-6. 1998, 244 pp.
Volume 6: Unification of Tort Law: Strict Liability. Edited by Bernhard A. Koch and Helmut Koziol. Kluwer Law International, The Hague. Hardcover. ISBN 90-411-1705-9. 2002, 444 pp.
Volume 3: Unification of Tort Law: Wrongfulness. Edited by Helmut Koziol. Kluwer Law International, The Hague. Hardcover. ISBN 90-411-1019-4. 1998, 144 pp.
Volume 7: Unification of Tort Law: Liability for Damage caused by Others. Edited by Jaap Spier. Kluwer Law International, The Hague. Hardcover. ISBN 90-411-2185-4. 2003, 335 pp.
Volume 4: Unification of Tort Law: Causation. Edited by Jaap Spier. Kluwer Law International, The Hague. Hardcover. ISBN 90-411-1325-8. 2000, 161 pp.
Volume 8: Unification of Tort Law: Contributory Negligence. Edited by Ulrich Magnus and Miquel Martín-Casals. Kluwer Law International, The Hague. Hardcover. ISBN 90-411-2220-6. 2004, 300 pp.
Publications
Volume 9: Unification of Tort Law: Multiple Tortfeasors. Edited by W.V. Horton Rogers. Kluwer Law International, The Hague. Hardcover. ISBN 90-411-2319-9. 2004, 313 pp.
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Volume 10: Unification of Tort Law: Fault. Edited by Pierre Widmer. Kluwer Law International, The Hague. Hardcover. ISBN 90-411-2098-X. 2005, 393 pp.
Tort and Insurance Law Volume 1: Cases on Medical Malpractice in a Comparative Perspective. Edited by Michael Faure and Helmut Koziol. Springer, Vienna/New York. Softcover. ISBN 3-211-83595-4. 2001, 331 pp.
Volume 5: Deterrence, Insurability and Compensation in Environmental Liability. Future Developments in the European Union. Edited by Michael Faure. Springer, Vienna/New York. Softcover. ISBN 3-211-83863-5. 2003, 405 pp.
Volume 2: Damages for NonPecuniary Loss in a Comparative Perspective. Edited by W.V. Horton Rogers. Springer, Vienna/New York. Softcover. ISBN 3-211-83602-0. 2001, 318 pp.
Volume 6: Der Ersatz frustrierter Aufwendungen. Vermögens- und Nichtvermögensschaden im österreichischen und deutschen Recht. By Thomas Schobel. Springer, Vienna/New York. Softcover. ISBN 3-211-83877-5. 2003, 342 pp.
Volume 3: The Impact of Social Security on Tort Law. Edited by Ulrich Magnus. Springer, Vienna/New York. Softcover. ISBN 3-211-83795-7. 2003, 312 pp. Volume 4: Compensation for Personal Injury in a Comparative Perspective. Edited by Bernhard A. Koch and Helmut Koziol. Springer, Vienna/New York. Softcover. ISBN 3-211-83791-4. 2003, 501 pp.
Volume 7: Liability for and Insurability of Biomedical Research with Human Subjects in a Comparative Perspective. Edited by Jos Dute, Michael G. Faure and Helmut Koziol. Springer, Vienna/New York. Softcover. ISBN 3-211-20098-3. 2004, 445 pp. Volume 8: No-Fault Compensation in the Health Care Sector. Edited by Jos Dute, Michael G. Faure, Helmut Koziol. Springer, Vienna/New York. Softcover. ISBN 3-211-20799-6. 2004, 492 pp.
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Volume 9: Pure Economic Loss. Edited by Willem H. van Boom, Helmut Koziol and Christian A. Witting. Springer, Vienna/New York. Softcover. ISBN 3-211-00514-5. 2004, 214 pp.
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Volume 15: Entwurf eines neuen österreichischen Schadenersatzrechts. Edited by Irmgard Griss, Georg Kathrein and Helmut Koziol. Springer, Vienna/New York. Softcover. ISBN 3-211-30827-X. 2006, 146 pp.
Volume 10: Liber Amicorum Pierre Widmer. Edited by Helmut Koziol and Jaap Spier. Springer, Vienna/New York. Softcover. ISBN 3-211-00522-6. 2003, 376 pp.
Volume 16: Tort Law and Liability Insurance. Edited by Gerhard Wagner. Springer, Vienna/New York. Softcover. ISBN 3-211-24482-4. 2005, 361 pp.
Volume 11: Terrorism, Tort Law and Insurance. A Comparative Survey. Edited by Bernhard A. Koch. Springer, Vienna/New York. Softcover. ISBN 3-211-01867-0. 2004, 313 pp.
Volume 17: Children in Tort Law. Part I: Children as Tortfeasors. Edited by Miquel Martín-Casals. Springer, Vienna/New York. Softcover. ISBN 3-211-24480-8. 2006, 476 pp.
Volume 12: Abschlussprüfer. Haftung und Versicherung. Edited by Helmut Koziol and Walter Doralt. Springer, Vienna/New York. Softcover. ISBN 3-211-20800-3. 2004, 180 pp.
Volume 18: Children in Tort Law. Part II: Children as Victims. Edited by Miquel Martín-Casals. Springer, Vienna/New York. Softcover. ISBN 3-211-31130-0. 2007, 320 pp.
Volume 13: Persönlichkeitsschutz gegenüber Massenmedien/The Protection of Personality Rights against Invasions by Mass Media. Edited by Helmut Koziol and Alexander Warzilek. Springer, Vienna/New York. Softcover. ISBN 3-211-23835-2. 2005, 713 pp. Volume 14: Financial Compensation for Victims of Catastrophes. Edited by Michael Faure and Ton Hartlief. Springer, Vienna/New York. Softcover. ISBN 3-211-24481-6. 2006, 466 pp.
Volume 19: Tort and Regulatory Law. Edited by Willem H. van Boom, Meinhard Lukas and Christa Kissling. Springer, Vienna/New York. Hardcover. ISBN 978-3-211-31133-2. 2007, 477 pp. Volume 20: Shifts in Compensating Work-Related Injuries and Diseases. Edited by Saskia Klosse and Ton Hartlief. Springer, Vienna/New York. Hardcover. ISBN 978-3-211-71555-0. 2007, 236 pp.
Publications
Volume 21: Shifts in Compensation for Environmental Damage. Edited by Michael Faure and Albert Verheij. Springer, Vienna/New York. Hardcover. ISBN 978-3-211-71551-2. 2007, 338 pp.
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Volume 22: Shifts in Compensation between Private and Public Systems. Edited by Willem H. van Boom and Michael Faure. Springer, Vienna/New York. Hardcover. ISBN 978-3-211-71553-6. 2007, 246 pp.
European Tort Law Yearbook European Tort Law 2001. Edited by Helmut Koziol and Barbara C. Steininger. Springer, Vienna/New York. Softcover. ISBN 3-211-83824-4. 2002, 571 pp.
European Tort Law 2004. Edited by Helmut Koziol and Barbara C. Steininger. Springer, Vienna/New York. Softcover. ISBN 3-211-24479-4. 2005, 674 pp.
European Tort Law 2002. Edited by Helmut Koziol and Barbara C. Steininger. Springer, Vienna/New York. Softcover. ISBN 3-211-00486-6. 2003, 596 pp.
European Tort Law 2005. Edited by Helmut Koziol and Barbara C. Steininger. Springer, Vienna/New York. Softcover. ISBN 3-211-31135-1. 2006, 711 pp.
European Tort Law 2003. Edited by Helmut Koziol and Barbara C. Steininger. Springer, Vienna/New York. Softcover. ISBN 3-211-21033-4. 2004, 493 pp. Principles of European Tort Law Text and Commentary. Edited by the European Group on Tort Law. Springer, Vienna/New York. Softcover. ISBN 3-211-23084-X. 2005, 282 pp.
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Digest of European Tort Law Volume 1: Essential Cases on Natural Causation. Edited by Bénédict Winiger, Helmut Koziol, Bernhard A. Koch and Reinhard Zimmermann. Springer, Vienna/New York. Hardcover. ISBN 978-3-211-36957-9. 2007, 632 pp.
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