Tort and Insurance Law
Liability law is rapidly changing in quite a number of countries. This is due to various factors, which are interrelated to a large extent: changing case law and legislation as well as increased and still increasing technical and medical knowledge. As a result, various occupational diseases can, for example, be attributed to working conditions or personal injury to specific products. From the very moment that causation can be proven, the question arises of whether or not liability can be established – with far-reaching economic consequences for all parties involved.
The rise of phenomena such as mass torts, multiple causation, joint and several liability or various heads of damages (like ecological damage and several diseases and affections) rapidly increases the interest in tort law. In the context of the interrelation between liability and insurance, attention must be paid to the question of whether certain liabilities are still coverable or not, and, if they are, to what amounts.
(The question of jurisdictions is of growing importance as is the question of whether a specific liability can be covered by insurance. In this context, one should bear in mind that the affordability of tort law also requires safe and sound insurers. The recent past has shown that there is a limit to their financial stability.)
In recent years several cases concerning the liability of directors and officers have courted controversy. Arguments raised in such discussions oscillate between two extremes: on the one hand, the need for governing bodies to give a space to entrepreneurial discretion and on the other hand to ensure the protection of investors in and creditors of a company from the consequences of disadvantageous decisions by those bodies. In light of the geographical dispersal of the above stakeholders, the study offers a comparative insight into the liability of directors and officers in 10 key European jurisdictions (in particular, Austria, Czech Republic, Germany, Italy, the Netherlands, Norway, Poland, Spain and Switzerland) and 4 non-European jurisdictions (namely Brazil, Israel, Turkey and the United States). Amongst other things it investigates existing company law principles on the topic and examines their interaction with tort law and other fields with a view to suggesting principles for better stakeholder protection.
National reports are complemented by an economic analysis and insurance, conflict of laws and comparative reports. The study also benefits from case study analyses.
Statutory obligations to take out liability insurance are, in practice, the most important means to ensure compensability of damage arising from dangerous activities. However, in contrast to the significant practical impact, academic research on the topic has not been extensive so far. This study, therefore, undertakes a comprehensive survey of compulsory liability insurance from nine national perspectives (Austria, Belgium, the Czech Republic, Finland, Germany, Hungary, Italy, Switzerland, and the United Kingdom) and takes constitutional and European law (four freedoms, European Convention on Human Rights) as well as the Principles of European Insurance Contract Law (PEICL) into account. It also contains an extensive economic analysis of compulsory liability insurance and discusses aspects of insurability. A Comparative Report, Conclusions and an Annex containing a compilation of rules on compulsory liability insurance in the nine national legal systems complete the study. It considers in particular:
- the aims of provisions stating an obligation to take out liability insurance
- the mandatory content of insurance cover
- the protection mechanisms linked to compulsory liability insurance
- the control mechanisms and the sanctions imposed
- structural deficiencies of existing compulsory liability insurance systems
Causal uncertainty is a wide-spread phenomenon. Courts are often unable to determine whether a defendant’s tortious conduct was a factual cause of a plaintiff’s harm.
Yet, sometimes courts can determine the probability that the defendant caused the plaintiff’s harm, although often there is considerable variance in the probability estimate based on the available evidence. The conventional way to cope with this uncertainty has been to apply the evidentiary rule of ‘standard of proof’.The application of this ‘all or nothing’ rule can lead to unfairness by absolving defendants who acted tortiously and may also create undesirable incentives that result in greater wrongful conduct and injustice to victims. Some courts have decided that this ‘no-liability’ outcome is undesirable. They have adopted rules of proportional liability that compensate plaintiffs according to the probability that their harm was caused by the defendant’s tortious conduct.
In 2005 the Principles of European Tort Law (PETL) made a breakthrough in this regard by embracing rules of proportional liability. This project, building on PETL, endeavours to make further inquiries into the desirable scope of proportional liability and to offer a more detailed view of its meaning, implications, and ramifications.
The papers in this collection are drawn from a symposium held in Vienna in December 2010. Organised by the Institute for European Tort Law and the Chicago-Kent Law Review, in collaboration with the European Centre of Tort and Insurance Law, the conference drew together legal experts from 14 national or regional systems across six continents. Medical malpractice and compensation for medical injuries are issues which regularly create tension and innovation in national legal systems but the analysis of these areas is often limited to national audiences. This study examines the issues in a uniquely global context, demonstrating the breadth of approaches currently taken around the world and revealing key areas of tension and the likely direction of future developments. Wherever possible, the analysis is supported by reference to empirical data. The 14 legal systems covered in the collection are Austria, Brazil, Canada, China, France, Germany, Italy, Japan, New Zealand, Poland, Scandinavia, South Africa, the United Kingdom and the United States. A general comparative introduction completes the collection.
This large-scale comparative study analyses the two principal mechanisms employed in modern legal systems to deal with the social problem of occupational illness and injury, namely, employers' liability and workers' compensation. It provides a detailed description of the systems in operation in twelve countries around the world, investigating the complex legal structures and the interaction with other social institutions, as well as their inter-jurisdictional coordination through private international law. Current international trends are identified and assessed and the fundamental political issues highlighted and explored. The study's ultimate goals are not only descriptive but also to answer the question of how compensation and liability systems can best be adapted to meet society's needs in the 21st century.
The countries covered are:
Australia (Mark Lunney), Austria (Ernst Karner/Felix Kernbichler), Denmark (Vibe Ulfbeck), England and Wales (Richard Lewis), France (Florence G'Sell/Isabelle Veillard), Germany (Raimund Waltermann), Italy (Alessandro P Scarso/Massimo Foglia), Japan (Keizo Yamamoto/Tomohiro Yoshimasa), the Netherlands (Siewert D Lindenbergh), Poland (Domenika Dörre-Nowak), Romania (Christian Alunaru/Lucian Bojin) and the United States of America (Michael D Green/Daniel S Murdock).The book is completed by three concluding essays that address general themes:
- Thomas Thiede, The European Coordination of Employers' Liability and Workers' Compensation
- Ken Oliphant, The Changing Landscape of Work Injury Claims: Challenges for Employers' Liability and Workers' Compensation
- Gerhard Wagner, New Perspectives on Employers' Liability - Basic Policy Issues
The goal of this study is to provide a general overview and thorough analysis of how the European Court of Human Rights deals with tort law issues such as damage, causation, wrongfulness and fault, the protective purpose of rules, remedies and the reduction of damages when applying art 41 of the European Convention on Human Rights (ECHR).
These issues have been examined on the basis of a comprehensive selection and detailed analysis of the Court’s judgments and the results compared with different European legal systems (Austria, Belgium, England and Wales, France, Germany, Hungary, Ireland, Italy, Poland, Romania, Scandinavia, Spain, Switzerland and Turkey), EC Tort Law and the Principles of European Tort Law.
The introduction of art 41 (ex art 50) ECHR in 1950 as a compromise and the issues it raises now, the methodological approaches to the tort law of the ECHR, the perspectives of human rights and tort law and public international law as well as the question of whether the reparation awarded to victims of ECHR violations can be considered real ‘just’ satisfaction are addressed in five special reports (two of which are also available in German). Concluding remarks try to summarise the outcome.
Ten years after the first study published in this field by the European Centre of Tort and Insurance Law, liability for medical malpractice is still a hot topic throughout Europe and it continues to expand and develop. In order to provide an update on the current situation across European legal systems, this book includes fourteen country reports authored by renowned experts from each legal system. In addition to providing a theoretical survey of key issues, each contributor also analyzed six hypotheticals based on actual cases, thereby also providing practical guidance on major aspects of liability claims. A concluding comparative analysis highlights commonalities and differences in the liability rules employed, dispute resolution procedures and the insurance background.
The topic is of particular interest for insurers as compensation for loss of housekeeping capacity is one of the main heads of damages awarded for personal injury. Naturally it also has considerable importance for accident victims. Yet it has received relatively little scholarly attention, at least from a comparative perspective.
The aim of this study is to examine national approaches to the award of damages under the head of loss of housekeeping capacity, and to compare the levels of damages so awarded. The research will therefore address both the concepts employed in different national systems and, by means of practical case studies, the compensation actually paid in individual cases.
The results of the research comprise ten country reports (Austria, England and Wales, France, Germany, Italy, The Netherlands, Norway, Poland, Spain and Switzerland) based on a Questionnaire (Part I: General Part and Doctrine, Part II: Concrete Assessment Examples) and a concluding Comparative Report.
This project, "Loss of Housekeeping Capacity", was undertaken at the request of the Swiss Insurance Association.
The debate about the use of genetically modified organisms in European agriculture is fuelled by the fear of the general public about potential risks of GM farming, whether substantiated or not. Transgenic food is suspected to cause bodily harm, have a negative impact upon the health of animals, weaken the productivity of conventional farmland, reduce biodiversity or otherwise deteriorate the environment, to name but a few dangers popping up in the public debate.
Apart from setting standards for GM farming and requiring safety checks for transgenic products, all jurisdictions also provide for the case that such risks should materialize. These are not necessarily novel approaches - classic tort law already offers remedies for such losses. Sometimes these traditional solutions are enhanced or replaced by alternative redress schemes. This volume compares twenty European and four non-European jurisdictions in this respect and provides special analyses from an economic and insurance perspective as well as surveys of cross-border dispute resolution and international law.
Initiated by the European Commission, the first study published in this volume analyses the largely unresolved question as to how damage caused by artificial intelligence (AI) systems is allocated by the rules of tortious liability currently in force in the Member States of the European Union and in the United States, to examine whether - and if so, to what extent - national tort law regimes differ in that respect, and to identify possible gaps in the protection of injured parties. The second study offers guiding principles for safety and liability with regard to software, testing how the existing acquis needs to be adjusted in order to adequately cope with the risks posed by software and AI. The annex contains the final report of the New Technologies Formation of the Expert Group on Liability and New Technologies, assessing the extent to which existing liability schemes are adapted to the emerging market realities following the development of new digital technologies.
