Unification of Tort Law: Strict Liability. B. A. Koch/H. Koziol (Eds.)

Transcription

1 Unification of Tort Law: Strict Liability B. A. Koch/H. Koziol (Eds.) F.D. Busnelli G. Comandé H. Cousy/D. Droshout M. Faure J. Fedtke/U. Magnus S. Galand-Carval I. Gilead K. Kerameus B.A. Koch/H. Koziol M. Martin-Casals/J. Ribot/J. Sole J. Neethling M. Nesterowicz/E. Baginska E. du Perron/W.H. van Boom W.V.H. Rogers G.T. Schwartzt L. Tichy P. Widmer KLUWER LAW INTERNATIONAL THE HAGUE / LONDON / NEW YORK

2 Contents List of Abbreviations xxvii Strict Liability: Questionnaire and Cases (Michael R. Will) 3 Part I. General Questions 3 A. Légal Basis 3 1. Strict liability versus fault liability - alternatives or grey areas in between? Other means of achieving strict liability 3 3. In which fields has strict liability been developed? 3 liability? 3 later been reassigned to fault liability? 3 liability in cases where there is also a strict liability in tort? 3 B. General characteristics 4 1. What does strict liability attach to? 4 2. Which factors justify strict liability? 4 3. Strict liability in favour of the environment, télécommunications, others 4 4. Who is liable? 4 5. Where and to what extent do you hâve a channelling of liability? 4 6. Which defences? 4 7. Other factors pointing away from strict liability 4 C. Rules differing from gênerai tort law 4 1. Causation 4 2. Protective purpose of the statute 5 3. Type of damages 5 4. Amount of damages 5 5. Time limits 5 D. Cumulation of strict liability and fault liability? 5 E. Interrelation with other compensation Systems 5 1. Insurance (compulsory or not) 5 2. Social security 5 3. Workers' compensation 5 4. Compensation fund 5 F. Visions 5 1. Reform in your country 5 2. Personal visions 5 3. Vision for a European Civil Code (in particular a gênerai clause) 5 G Possible directions 5 1. Swiss Draft art. 50 (1999)? 5 2. American Restatement on Torts 2d 519, 520 (1976)? 5 IX

3 x Contents Part II. Cases 5 A. Scope (protective purpose) of strict liability norms 5 B. Notion of 'custodian/keeper' 6 C. Excuses 6 D. Channelling strict liability upon operator/license holder 6 Austria (Bernhard A. Koch and Helmut Koziol) 9 Part I. General Questions 9 A. Légal basis 9 1. Strict liability versus fault liability - alternatives or grey areas in between? Other means of achieving strict liability In which fields has strict liability been developed? 13 liability? 14 later been reassigned to fault liability? 15 liability in cases where there is also a strict liability in tort? 15 B. General characteristics What does strict liability attach to? Which factors justify strict liability? Strict liability in favour of the environment, télécommunications, others Who is liable? Where and to what extent do you hâve a channelling of liability? Which defences? Other factors pointing away from strict liability 28 C. Rules differing from gênerai tort law Causation Protective purpose of the statute Type of damages Amount of damages Time limits Vicarious liability 33 D. Cumulation of strict liability and fault liability? 33 E. Interrelation with other compensation Systems Insurance (compulsory or not) Social security Workers' compensation Compensation fund 35 F. Visions Reform in Austria Personal visions Vision for a European Civil Code (in particular a gênerai clause) 37

4 Contents xi G. Possible directions Swiss Draft art. 50 (1999)? American Restatement on Torts 2d 519, 520 ( 1976)? 37 Part II. Cases 38 A. Scope (protective purpose) of strict liability norms 38 B. Notion of 'custodian/keeper' 39 C. Excuses 39 D. Channelling strict liability upon operator/license holder 40 Belgium (Herman Cousy and Dimitri Droshout) 43 Part I. General Questions 43 Preliminary remarks 43 A. Légal basis Strict liability versus fault liability - alternatives or grey areas in between? Other means of achieving strict liability In which fields has strict liability been developed? 48 liability? 58 later been reassigned to fault liability? 60 liability in cases where there is also a strict liability in tort? 61 B. General characteristics What does strict liability attach to? Which factors justify strict liability? Strict liability in favour of the environment, télécommunications, others Who is liable? Where and to what extent do you hâve a channelling of liability? Which defences? 66 C. Rules differing from gênerai tort law Causation Type of damages Amount of damages Time limits 70 D. Cumulation of strict liability and fault liability? 71 E. Interrelation with other compensation Systems Insurance (compulsory or not) Social securiry Workers' compensation 71 Part II. Cases 72 A. Scope (protective purpose) of strict liability norms 72 B. Notion of 'custodian/keeper' 73

5 xii Contents C. Excuses 73 D. Channelling strict liability upon operator/license holder 74 Czech Republic (Lubos Tichy) 75 Part I. General Questions 75 A. Légal basis 75 Introduction Strict liability versus fault liability - alternatives or grey areas in between? Other means of achieving strict liability In which fields has strict liability been developed? 82 liability? 83 later been reassigned to fault liability? 84 liability in cases where there is also a strict liability in tort? 84 B. General characteristics What does strict liability attach to? Which factors justify strict liability? Strict liability in favour of the environment, télécommunications, others Who is liable? Where and to what extent do you hâve a channelling of liability? Which defences? Other factors pointing away from strict liability 91 C. Rules differing from gênerai tort law Causation Protective purpose of the statute Type of damages Amount of damages Time limits 94 D. Cumulation of strict liability and fault liability 94 E. Interrelation with other compensation Systems Insurance (compulsory or not) Social security and 3. Workers' compensation Compensation fund 96 F. Visions Reform in the Czech Republic Personal visions Vision for a European Civil Code (in particular a gênerai clause) 97 G Possible directions 97 Part II. Cases 97 A. Scope (protective purpose) of strict liability norms 97 B. Notion of 'custodian/keeper' 98

6 Contents xiii C. Excuses 98 D. Channelling strict liability upon operator/license holder 99 England (W. V. Horton Rogers) 101 Part I. General Questions 101 A. Légal basis Strict liability versus fault liability - alternatives or grey areas in between? Other means of achieving strict liability In which fields has strict liability been developed? 106 liability? 109 later been reassigned to fault liability? Does your law of contact offer the possibility of a claim based on strict liability in cases where there is also a strict liability in tort? 109 B. General characteristics What does strict liability attach to? Which factors justify strict liability? Strict liability in favour of the environment, télécommunications, others Who is liable? Where and to what extent do you hâve a channelling of liability? Which defences? Other factors pointing away from strict liability 119 C. Rules differing from gênerai tort law Causation Protective purpose of the statute Type of damages Amount of damages Time limits 121 D. Cumulation of strict liability and fault liability? 122 E. Interrelation with other compensation Systems 122 F. Visions, possible directions 122 Part II. Cases 124 A. Scope (protective purpose) of strict liability norms 124 B. Notion of 'custodian/keeper' 125 C. Excuses 125 D. Channelling strict liability upon operator/license holder 126 France (Suzanne Galand-Carval) 127 Part I: General Questions 127 A. Légal basis Strict liability versus fault liability - alternatives or grey areas in between? Other means of achieving strict liability 129

7 xiv Contents 3. In which fields has strict liability been developed? 130 liability? 131 later been reassigned to fault liability (by the legislator or the judge)? 131 liability in cases where there is also a strict liability in tort? 131 B. General characteristics What does strict liability attach to? Which factors justify strict liability? Who is liable? Where and to what extent do you hâve a channelling of liability? Which defences? 137 C. Rules differing from gênerai tort law Causation Protective purpose rule Type of damages Amount of damages Time limits 140 D. Cumulation of strict liability and fault liability 140 E. Interrelation with other compensation Systems Insurance Social security Workers' compensation Compensation funds 142 F. Visions/G Possible directions 142 Part IL Cases 142 A. Scope (protective purpose) of strict liability norms 142 B. Notion of 'custodian/keeper' 143 C. Excuses 144 D. Channelling strict liability upon operator/license holder 145 Germany (Jôrg Fedtke and Ulrich Magnus) 147 Part I. General Questions 147 A. Légal basis Strict liability versus fault liability - alternatives or grey areas in between? Other means of achieving strict liability 151 3/4. In which fields has strict liability been developed? 4. How do judges, when they interpret statutes or précédents, handle strict liability? 152 later been reassigned to fault liability? 154 liability in cases where there is also a strict liability in tort? 154

8 Contents xv B. General characteristics What does strict liability attach to? Which factors justify strict liability? Strict liability in favour of the environment, télécommunications, others Who is liable? Where and to what extent do you hâve a channelling of liability? Which defences? Other factors pointing away from strict liability 165 C. Rules differing from gênerai tort law Causation Protective purpose of the statute Type of damages Amount of damages Time limits 169 D. Cumulation of strict liability and fault liability? 169 E. Interrelation with other compensation Systems Insurance (compulsory or not) 170 2/3. Social security and workers' compensation Compensation fund 171 F. Visions Reform in Germany Personal visions Vision for a European Civil Code (in particular a gênerai clause) 172 G Possible directions 172 Part II. Cases 173 A. Scope (protective purpose) of strict liability norms 173 B. Notion of 'custodian/keeper' 174 C. Excuses 174 D. Chanelling strict liability upon operator/license holder 175 Greece (Konstantinos D. Kerameus) 177 Part I. General Questions 177 A. Légal basis 177 B. General characteristics 178 C. Rules differing from gênerai tort law 179 Part II. Cases 180 A. Scope (protective purpose) of strict liability norms 180 B. Notion of 'custodian/keeper' 181 C. Excuses 181 D. Channelling strict liability upon operator/license holder 181

9 xvi Contents Israël (Israël Gilead) 183 Part I. General Questions 183 A. Légal basis Strict liability versus fault - alternatives or grey areas in between? Other means of achieving strict liability In which fields has strict liability been developed? 187 liability? Has a particular risk, once subjected to strict liability (by statute or case law) later been reassigned to fault liability? 193 liability in cases where there is also a strict liability in tort? 194 B. General Characteristics What does strict liability attach to? Which factors justify strict liability? Strict liability in favour of the environment, télécommunications, others Who is liable? Where and to what extent do you hâve a channelling of liability? Which defences? Other factors pointing away from strict liability 200 C. Rules differing from gênerai tort law Causation Protective purpose of the statute Type of damages Amount of damages Time limits 202 D. Cumulation of strict liability and fault liability? 203 E. Interrelation with other compensation Systems 203 F-G Visions and directions Reform Personal vision - possible directions 204 Part II. Cases 204 A. Scope (protective purpose) of strict liability norms 204 B. Notion of 'custodian/keeper' 204 C. Excuses 205 D. Channelling strict liability to operator/license holder 205 Italy (F.D. Busnelli and Giovanni Comandé) 207 Introduction to 'stricter' liability under Italian law 207 Summary of légal rules Liability for acts committed by others Liability for rights over goods or animais 211

10 Contents xvii 3. Liability connected to the exercise of dangerous activities Risks deriving from industrial activities with spécifie référence to the protection of consumers or the environment Spécifie environmental damage Prévention of underground water pollution by certain dangerous substances and other sources of pollution 216 Part I. General Questions 216 A. Légal basis Strict liability versus fault liability - alternatives or grey areas in between? Other means of achieving strict liability In which fields has strict liability been developed? 217 liability? Does your law of contract offer the possibility of a claim based on strict liability in cases where there is also a strict liability in tort? 218 B. General characteristics What does strict liability attach to? Which factors justify strict liability? Strict liability in favour of the environment, télécommunications, others Who is liable? Where and to what extent do you hâve a channelling of liability? Which defences? 222 C. Rules differing from gênerai tort law Causation Protective purpose of the statute Types of damages Amount of damages Time limits 223 D. Cumulation of strict liability and fault liability? 224 E. Interrelation with other compensation Systems 224 F. Visions 224 G Possible directions 225 Part IL Cases 225 A. Scope (protective purpose) of strict liability norms 225 B. Notion of 'custodian/keeper' 225 C. Excuses 226 D. Channelling strict liability upon operator/license holder 226 Netherlands (Edgar du Perron and Willem H. van Boom) 227 Part I. General questions 227 A. Légal basis Strict liability versus fault liability - alternatives or grey areas in between?

11 xviii Contents 2. Other means of achieving strict liability In which fields has strict liability been developed? 232 liability? 244 later been reassigned to fault liability? 244 liability in cases where there is also a strict liability in tort? 244 B. General characteristics What does strict liability attach to? Which factors justify strict liability? Strict liability in favour of the environment, télécommunications, others Who is liable? Where and to what extent do you hâve a channelling of liability? Which defences? Other factors pointing away from strict liability 247 C. Rules differing from gênerai tort law Causation Protective purpose of the statute Type of damages Amount of damages Time limits 249 D. Cumulation of strict liability and fault liability? 249 E. Interrelation with other compensation Systems Insurance (compulsory or not) Social security Workers' compensation Compensation fund 251 F. Visions Reform in the Netherlands Visions for a European Civil Code 251 G Possible directions 252 Part IL Cases 252 A. Scope (protective purpose) of strict liability norms 252 B. Notion of 'custodian/keeper' 253 C. Excuses 254 D. Channelling strict liability upon operator/license holder 255 Poland (Miroslaw Nesterowicz and Ewa Baginska) 257 Part I. General Questions 257 A. Légal basis Strict liability versus fault liability - alternatives or grey areas in between? Other means of achieving strict liability 257

12 Contents xix 3. In which fields has strict liability been developed? 258 liability? Has a particular risk, once subjected to strict liability (by statute or case law) later been reassigned to fault liability? 259 liability in cases where there is also a strict liability in tort? 259 B. General characteristics What does strict liability attach to? Which factors justify strict liability? Strict liability in favour of the environment, télécommunications, others Who is liable? Where and to what extent do you hâve a channelling of liability? Which defences Other factors pointing away from strict liability 263 C. Rules differing from gênerai tort law Causation Protective purpose of the statute Type of damages Amount of damages Time limits 264 D. Cumulation of strict liability and fault liability? 265 E. Interrelation with other compensation Systems Insurance (compulsory or not) Social security Workers' compensation Compensation fund 266 F. Visions 266 G Possible directions 267 Part II. Cases 267 A. Scope (protective purpose) of strict liability norms 267 B. Notion of 'custodian/keeper' 268 C. Excuses 268 D. Channelling strict liability upon operator/license holder 268 South Africa (Johann Neethling) 269 Part I. General Questions 269 A. Légal basis Strict liability versus fault liability - alternatives or grey areas in between? Other means of achieving strict liability In which fields has strict liability been developed? 271 liability? 272

13 xx Contents later been reassigned to fault liability? 272 liability in cases where there is also a strict liability in tort? 273 B. General characteristics What does strict liability attach to? Which factors justify strict liability? Strict liability in favour of the environment, télécommunications, others Who is liable? Where and to what extent do you hâve a channelling of liability? Which defences? Other factors pointing away from strict liability 276 C. Rules differing from gênerai tort law Causation Protective purpose of the statute Type of damages Amount of damages Time limits 277 D. Cumulation of strict liability and fault liability? 277 E. Interrelation with other compensation Systems 278 F. Visions Reform in South Africa Personal visions Vision for a European Civil Code (in particular a gênerai clause) 278 G Possible directions 278 Part IL Cases 279 A. Scope (protective purpose) of strict liability norms 279 B. Notion of 'custodian/keeper' 279 C. Excuses 279 D. Channelling strict liability upon operator/license holder 279 Spain (Miquel Martin-Casals, Jordi Ribot and Josep Sole) 281 Part I. General Questions 281 A. Légal basis Strict liability versus fault liability - alternatives or grey areas in between? Other means of achieving strict liability In which fields has strict liability been developed? 290 liability? 293 later been reassigned to fault liability? 294 liability in cases where there is also a strict liability in tort? 294

14 Contents xxi B. General characteristics What does strict liability attach to? Which factors justify strict liability? Strict liability in favour of the environment, télécommunications, others Who is liable? Where and to what extent do you hâve a channelling of liability? Which defences? Other factors pointing away from strict liability 309 C. Rules differing from gênerai tort law Causation Protective purpose of the statute Type of damages Amount of damages Time limits 312 D. Cumulation of strict liability and fault liability? 313 E. Interrelation with other compensation Systems Insurance (compulsory or not) Social security/3. Workers' compensation Compensation fund 315 F. Visions Reform in Spain Personal visions Vision for a European Civil Code (in particular a gênerai clause) 316 Part IL Cases 316 A. Scope (protective purpose) of strict liability norms 316 B. Notion of 'custodian/keeper' 318 C. Excuses 319 D. Channelling strict liability upon operator/license holder 321 Switzerland (Pierre Widmer) 323 Part I. General questions 323 A. Légal basis Strict liability versus fault liability - alternatives or grey areas in between? Other means of achieving strict liability In which fields has strict liability been developed? 326 liability? 329 later been reassigned to fault liability? 329 liability in cases where there is also a strict liability in tort? 330 B. General characteristics 330 I. What does strict liability attach to? 330

15 xxii Contents 2. Which factors justify strict liability? Strict liability in favour of the environment, télécommunications, others Who is liable? Where and to what extent do you hâve a channelling of liability? Which defences? Other factors pointing away from strict liability 339 C. Rules differing from gênerai tort law Causation Protective purpose of the statute Type of damages Amount of damages Time limits 343 D. Cumulation of strict liability and fault liability? 344 E. Interrelation with other compensation Systems Insurance (compulsory or not) Social security Workers' compensation Compensation fund 346 F. Visions Reform in S witzerland Personal visions Vision for a European Civil Code (in particular a gênerai clause) 347 G Possible directions Swiss Draft art. 50 (1999)? American Restatement on Torts 2d 519, 520 ( 1976)? 347 Part II. Cases 348 A. Scope (protective purpose) of strict liability norms 348 B. Notion of 'custodian/keeper' 349 C. Excuses 349 D. Channelling strict liability upon operator/license holder 349 United States (Gary T. Schwartz) 351 Part 1. General Questions 351 A. Légal basis Strict liability versus fault liability - alternatives or grey areas in between? Other means of achieving strict liability In which fields has strict liability been developed? 353 liability? 353 later been reassigned to fault liability? 354 liability in cases where there is also a strict liability in tort? 354

16 Contents xxiii B. General characteristics What does strict liability attach to? Which factors justify strict liability? Strict liability in favour of the environment, télécommunications, others Who is liable? Where and to what extent do you hâve a channelling of liability? Which defences? Other factors pointing away from strict liability 357 C. Rules differing from gênerai tort law Causation Protective purpose of the statute Type of damages Amount of damages Time limits 358 D. Cumulation of strict liability and fault liability? 358 E. Interrelation with other compensation Systems 358 F. Visions 358 G Possible directions 359 Part II. Cases 359 A. Scope (protective purpose) of strict liability norms 359 B. Notion of 'custodian/keeper' 359 C. Excuses 359 D. Channelling strict liability upon operator/license holder 360 Economie Analysis (Michael Faure) 361 I. Introduction 361 II. Various légal forms of strict liability 361 A. Injurers with lower qualifications 362 B. Breach of a statutory duty 362 C. Reversai of the burden of proof 363 III. Economie criteria for strict liability 364 A. The test for strict liability Optimal prévention: the unilatéral setting The bilatéral setting The activity level A test 367 B. A few refinements 367 C. Législation or case law? 369 IV. Examples of strict liability 370 A. Strict liability in (Belgian) tort Law 370 B. Economie analysis 371 C. Environmental damage 372 D. Reassignment of liability rules 374

17 xxiv Contents V. Strict liability in contract situations 376 A. Basic économie analysis of product liability Coasean bargaining Strict liability for 'full internalisation' Victim's care Market power Attitudes toward risk and insurance 379 B. Some économie effects of the EC Directive on Product Liability of 25 July C. Récent developments Including primary agricultural products Green Paper on liability for defective products 384 VI. Issues related to strict liability 386 A. Channelling of liability 386 B. Financial caps 387 C. Compulsory insurance? The duty to insure Increasing the expected utility Informational asymmetry Insolvency Two further conditions 390 D. Statutes of limitations 391 E. Rétroactive strict liability? 392 F. Development risk 393 VII. Concluding remarks 393 Comparative Conclusions (Bernhard A. Koch and Helmut Koziol) 395 Introduction Terminology Inventory 395 a) General clause(s) or enumeration of singular risks? 395 b) Rules focusing on the cause of harm 395 c) Rules focusing on the harm itself Conclusion 406 II. Justifications Arguments focusing on the cause of harm 407 a) Dangerousness in gênerai 407 b) Singular dangerousness 408 c) Ability to avoid the actual harm 409 d) Prévention of harm in gênerai Arguments focusing on the harm itself Arguments focusing on the availability of compensation 411 a) 'Structural weakness' of the victim 411 b) Vicarious liability concepts 411 c) Deep pocket arguments 411

18 Contents xxv 4. Arguments focusing on the interests involved 412 a) Benefit/profit 412 b) Risk/loss sharing 412 c) Public interest in favour of the source of harm Summary 413 III. Who is liable? Keeper, possessor, custodian, person in control 413 a) Dangers 413 b) Other sources 417 c) Case d) Conclusions Incapable persons Unauthorized persons Channelling 419 IV. Defences Inventory 420 a) Arguments beyond the sphère of both plaintiff and défendant 420 b) Arguments concerning the défendant's sphère 421 c) Arguments concerning the plaintiff's sphère Summary 424 V. Spécifie features Causation 425 a) Presumption of causation 425 b) Conflicting causes (strict + strict, strict + fault) Protective purpose of the norm Type of loss covered Amount of damages 428 a) Caps 428 b) Mitigation of damages 429 c) Thresholds Time limits 429 VI. Interrelation with other compensation Systems 430 VII. Cumulation of strict and fault liability 432 VIII. Catégories between strict and fault liability ('grey" areas) 432 Index 437