15th - Ectil.org - European Centre of Tort and Insurance Law

Sponsors: Austrian Ministry of Justice, Kulturabteilung der Stadt Wien, Munich Re

Essential information on court practice and legislation in

the area of tort law in 2015 in the following jurisdictions:

Austria • Belgium • Bulgaria • Croatia • The Czech Republic • Denmark England and Wales • Estonia • Finland • France • Germany • Greece

Hungary • Ireland • Italy • Latvia • Lithuania • Malta • The Netherlands

Norway • Poland • Portugal • Romania • Scotland • Slovakia • Slovenia

Spain • Sweden • Switzerland • European Union

Including a Special Session on Liability for

Unknown Risks

www.acet.ectil.org

March 31 to April 2, 2016Vienna (Austria)

15thAnnual Conference on European Tort Law

Welcome!

Dear Conference Participants!

We are delighted to welcome you to the 15th Annual Conference on European Tort Law, which is organised jointly by the European Centre of Tort and Insur-ance Law (ECTIL) and the Institute for European Tort Law (ETL). For some of you, this will be your first time at the conference, while for others it has become a regular event in the calendar. Whichever category you fall in, we hope that this year’s conference will be an interesting and enjoyable experience for all of you!

Helmut KoziolDirector, European Centre of Tort and Insurance Law

Ernst KarnerDirector, Institute for European Tort Law

Barbara C SteiningerInstitute for European Tort Law

Table of Contents

Programme 2

DEVELOPMENTS IN TORT LAW IN EUROPE 2015 Friday, April 1, 2016

Barbara C STEININGER: Austria 4Isabelle C DURANT: Belgium 4Christian TAKOFF: Bulgaria 5Marko BARETIĆ: Croatia 6Jiří HRÁDEK: The Czech Republic 6Andreas BLOCH EHLERS: Denmark 7Annette MORRIS: England & Wales 7Irene KULL: Estonia 8Päivi KORPISAARI: Finland 9Michel SÉJEAN: France 9Jörg FEDTKE: Germany 10Eugenia G DACORONIA: Greece 10Attila MENYHÁRD: Hungary 12Eoin QUILL: Ireland 12Elena BARGELLI: Italy 13Agris BITĀNS: Latvia 13Loreta ŠALTINYTĖ: Lithuania 14Giannino CARUANA DEMAJO: Malta 15Anne LM KEIRSE: The Netherlands 16Knut Martin TANDE: Norway 17Ewa BAGIŃSKA: Poland 17André DIAS PEREIRA: Portugal 18Christian ALUNARU: Romania 18Martin A HOGG: Scotland 19Anton DULAK: Slovakia 20Gregor DUGAR: Slovenia 21Albert RUDA: Spain 22Håkan ANDERSSON: Sweden 23Peter LOSER: Switzerland 23Thomas THIEDE: European Union 24 Bernhard A KOCH: Comparative Remarks 25

SPECIAL SESSION: LIABILITY FOR UNKNOWN RISKSSaturday, April 2, 2016

Martin A HOGG: Liability for Unknown Risks: a Common Law Perspective 26Dirk LOOSCHELDERS: Liability for Unknown Risks in German Law 28 Pedro del OLMO: Unknown Risks and Civil Liability in Spain 29 Franziska WEBER: Liability for Unknown Risks: A Law and Economics Perspective 31

Curricula Vitæ 32Contributors 44ETL and ECTIL Staff 45Conference Participants 45Additional Resources 49

2 Programme Programme 3

Programme

OPENING LECTUREThursday, March 31, 2016

Austrian Ministry of Justice (Palais Trautson),

Museumstrasse 7, 1070 Vienna

Chair: Reiner SCHULZE

18:00 Welcome Address by Georg Kathrein (Federal Ministry of Justice)

18:10 Catherine M SHARKEY: Tort Liability for Pure Economic Loss: U S and E U Perspectives

19:30 Opening Reception

DEVELOPMENTS IN TORT LAW IN EUROPE 2015 Friday, April 1, 2016

Austrian Supreme Court/Palace of Justice,

Schmerlingplatz 11, 1010 Vienna

Chairs: Georg KODEK / Monika HINTEREGGER

09:00 Welcome Address by Eckart Ratz (President of the Austrian Supreme Court)

09:05 Brief reports on the following jurisdictions:

10:40 Coffee break


12:30 Lunch Break (light buffet provided)


Barbara C STEININGER: Austria

Isabelle C DURANT: Belgium

Christian TAKOFF: Bulgaria

Marko BARETIĆ: Croatia

Jiří HRÁDEK: The Czech Republic

Andreas BLOCH EHLERS: Denmark

Annette MORRIS: England and Wales

Irene KULL: Estonia

Päivi KORPISAARI: Finland

Michel SÉJEAN: France

Jörg FEDTKE/Felicitas SCHAD: Germany

Eugenia DACORONIA: Greece

Attila MENYHÁRD: Hungary

Eoin QUILL: Ireland

Elena BARGELLI: Italy

Agris BITĀNS: Latvia

Loreta ŠALTINYTĖ: Lithuania

Giannino CARUANA-DEMAJO: Malta

Anne KEIRSE: The Netherlands

Knut Martin TANDE: Norway

Ewa BAGIŃSKA: Poland

André DIAS PEREIRA: Portugal

Christian ALUNARU: Romania

Martin A HOGG: Scotland

Anton DULAK: Slovakia

2 Programme Programme 3

15:10 Coffee Break


16:45 Bernhard A KOCH: Comparative Remarks

(Discussion at the end of each presentation )

19:30 Heurigen Evening

Gregor DUGAR: Slovenia

Albert RUDA: Spain

Håkan ANDERSSON: Sweden

Peter LOSER: Switzerland

Thomas THIEDE: European Union

SPECIAL SESSION: LIABILITY FOR UNKNOWN RISKSSaturday, April 2, 2016

Austrian Supreme Court/Palace of Justice,

Schmerlingplatz 11, 1010 Vienna

Chair: Jaap SPIER

09:00 Martin A HOGG: Liability for Unknown Risks: a Common Law Perspective

Dirk LOOSCHELDERS: Liability for Unknown Risks in German Law

10:30 Coffee Break

11:00 Pedro del OLMO: Unknown Risks and Civil Liability in Spain, with some

French-Italian Comparative Remarks

Franziska WEBER: Liability for Unknown Risks: A Law and Economics Perspective

(Discussion at the end of each lecture )

13:00 Close

We kindly ask you to take the time to fill in the feedback forms provided at the end of the con-

ference The 15th Annual Conference on European Tort Law, again organized by the Institute for

European Tort Law and the European Centre of Tort and Insurance Law, will be held Thursday,

April 20, to Saturday, April 22, 2017.

4 Developments in Tort Law in Europe 2015 15th Annual Conference on European Tort Law 5

Barbara C STEININGER

Austria

DEVELOPMENTS IN TORT LAW IN EUROPE 2015

Isabelle C DURANT

Belgium

BELGIUM – Legislation (project)

Minister for Justice

- General Policy Note of 10 November 2015. - Launch of an ambitious project: the Reform of the Civil Code, including the provisions concerning tort law. - At the moment, no timetable has been announced.

1

BELGIUM – Case-Law Cour de cassation/Hof van Cassatie

5 March 2015, C.14.0047.F Key words: Apartment Building Defective Part – Common Area Liability – Association of co-owners

Legal Provision: Art 1384 of the Civil Code Defective thing Guardian’s Liability

2

OGH 12 October 2015, 2 Ob 119/15m

The plaintiff was driving his motorbike while only wearing a t-shirt, shorts, working shoes and a helmet

At a speed of 100 km/h he collided with the defendant’s car

The plaintiff slid over the road for 61 m He suffered fractures and severe abrasions The abrasions could have been avoided had the plaintiff

worn protective clothing

Decision of the OGH

Is not wearing protective clothing contributory negligence?

Only if there was a general awareness within the circle of persons involved that reasonable and prudent motorcyclists would wear protective clothing

This is the case if it is foreseeable that a high or very high speed is reached

Pain and suffering claim reduced by 25%

Comments Contributory negligence only presupposes carelessness

towards one’s own goods A failure to take protective measures may therefore

constitute contributory negligence even without an explicit rule requiring such use

OGH 2 Ob 99/14v: Contributory negligence of bicyclist failing to wear a helmet when cycling under racing conditions

Comments The OGH referred to the high speed reached by

motorbikes The risk involved is decisive for assessing whether the

failure to take protective measures amounts to contributory negligence

Effectiveness of the protective measure also plays a role

See Barbara C STEININGER’s CV on page 42



5 March 2015, C.14.0047.F

Notion of Guardian of a Defective Thing

Person who: 1. for his/her own account, 2. uses the thing, enjoys it or keeps it, 3. with a power of supervision, direction and control.

3


5 March 2015, C.14.0047.F Hypothesis: Defective Common Area Problem: Who is the guardian? Consequence: Who has to be sued? Two options: - The co-owners (jointly) or - The Association of co-owners (= legal entity in charge of keeping and administering the common areas).

4


5 March 2015, C.14.0047.F Previous Case-law of the Supreme Court: Cour de cassation, 28 May 2010 Facts: Defective common area whose use was common Solution: Guardian = the Association of Co-owners = the legal entity

5


5 March 2015, C.14.0047.F Facts: Defective common area which was exclusively used by one of the co-owners Garden in which water was resting abnormally

Solution of the trial judges: Guardian = the Association of Co-owners = the legal entity

6


5 March 2015, C.14.0047.F Solution of the Supreme Court: Guardian = the Association of Co-owners = the legal entity Decision: “The fact that the association of co-owners does not use or does not enjoy the common areas is not sufficient to derogate it from its quality of guardian”

7

Christian TAKOFF

Bulgaria

Materials will be posted on the conference website (www acet ectil org) when available See Christian TAKOFF’s CV on page 42

See Isabelle C DURANT’s CV on page 35


Jiří HRÁDEK

The Czech Republic

Decision of the Supreme Court on Damage Caused by Compulsory Vaccination (Case no 25 Cdo 4286/2014)

Facts of the Case

The claimant was given a vaccination against tuberculosis However, as a result of the vac-cination, although conducted in a sterile en-vironment and lege artis, the resistant bacteria Mycobacterium Bovis caused inflammation of the hip joint which gradually spread to the en-tire body

The court of first instance deduced that there was a causal link between the vaccination and the bacterial infection and came to the conclu-sion that the respondent is liable for personal injury according to sec 421a of the Civil Code , because it is a public healthcare facility, whose legal duty it is, among other things, to carry out vaccinations, even against tuberculosis In this case, it is the unusual and unforeseen nature of the used vaccine that establishes the strict liability of the respondent The court of second instance confirmed the decision

The respondent filed an extraordinary appeal and argued that the courts of both instances incorrectly applied the provisions of sec 421a of the Civil Code In the provision of preventive care (the vaccination), the respondent only ful-filled the requirements of the state and had no choice but to proceed in this duty Thus, the re-spondent acted as a mediator between the State and the patient Therefore, as it is a de facto executor of state power which was transferred to it, it cannot be deemed subject to private law liability but liability under the State Liability Act In such a case, however, the liability shall be borne by the State

Conclusions of the Supreme Court:

• Despite the fact that individuals are obliged to undergo regular or special vaccinations in accordance with the provision of sec 46 of the Act on Public Health Protection and the com-petent authority in the patrimonial status au-thoritatively decides on their rights and obli-gations, the provider of the healthcare services itself is not a body of the State under secs 45 and 78 of the Act on Public Health Protection

• The reason is that, during the performance of the compulsory vaccination, it does not car-ry out public authority which was entrusted to it by law or under the law, and does not, there-fore, have the role of a public authority The obligatory application of the vaccine substance on its part is not an exercise of public authority towards the patient, but the fulfilment of the obligation within the meaning of sec 421a of the Civil Code

Issues:

The State establishes a duty to obtain a vaccine against various diseases but does not regulate the consequential liability of the medical care provider for any damage suffered by the vac-cinated patient Moreover, the liability for the

Marko BARETIĆ

Croatia

Materials will be posted on the conference website (www acet ectil org) when available See Marko BARETIĆ’s CV on page 33


adverse consequences of the vaccination is a case of strict liability where no exemption from liability is possible

With the Supreme Court’s approach, the bur-den of compensation for damage caused to third parties is fully shifted to the private enti-ties, which cannot refuse the duty to vaccinate the public Compensation for this normative damage from the State is not possible The de-cision is rather protective for the patient due

to the fact that the State Liability Act enables compensation only if the damage results from illegal decisions or maladministration, which are rather narrowly defined and relate to the administrative activity of authorities Thus, the wrongful result of the vaccination would probably be fully excluded from the scope of liability and the patient would not be awarded any compensation

Andreas BLOCH EHLERS

Denmark

Materials will be posted on the conference website (www acet ectil org) when available See Andreas BLOCH EHLERS’ CV on page 34

See Jiří HRÁDEK’s CV on page 36

Annette MORRIS

England and Wales

ENGLAND AND WALES

Liability of the Police for Harm Caused by Third Parties

Michael & others v Chief Constable of South Wales Police & another [2015] UKSC 2

Annette Morris Reader, Cardiff University

FACTS Joanna screamed and then line went dead Gwent immediately informed South Wales who arrived

at Joanna’s home at 2.51am But ex-partner had already killed Joanna Joanna’s parents and children sued the police in

negligence (and under art.2, ECHR) Preliminary issue: whether the police owed Joanna a

duty of care

FACTS 2.29am: Joanna phoned police reporting ex-partner had

threatened to ‘hit’/’kill’ her Call routed to Gwent rather than South Wales Police Gwent graded as G1 (immediate police response

required) and notified South Wales but no mention of threat to ‘kill’

South Wales graded as G2 (police to respond within 60 minutes)

2.43am: Joanna called police but again routed to Gwent

SUPREME COURT DECISION Held by majority of 5:2 (Lord Kerr and Lady Hale

dissenting) that no duty of care arose Rejected broad liability principle

▫ Duty owed if police are aware or ought reasonably to be aware of threat to life or physical safety of an identifiable person

And narrow liability principle ▫ Duty owed if member of public furnishes police with apparently

credible evidence that a third party whose identity and whereabouts are known presents a specific and imminent threat to her life or physical safety

And no assumption of responsibility on the facts


Changes in the legislation - 2015 From 1.10.2015 the prohibition to charge interest for

late payment provided for in the Law of Obligations Act (2002) also applies to all other agreed payments for delay and other charges for the use of money ( 113 LOA).

Aforementioned rule does not preclude or restrict the right of the creditor to claim compensation for damage caused by a delay in paying interest, including a penalty for late payment and other charge for the use of money ( 113 (5), (6) LOA).

Brief Summary of the Facts a traffic accident involving a timber truck (T) and garbage truck (G)

both vehicles were moving at the moment when the accident occurred

the road was slippery, narrow and snowy, but visibility was good the collision occurred as a result of the garbage truck entering the

oncoming traffic lane in a bend the garbage track was damaged (cost of repair was € 8,112.99 +

expert assessment € 2,510.82 and other costs) G filed a claim for damages against the Insurance Company.

Insurance Dispute Commission dismissed the claim: both drivers were equally responsible for causing the accident

Case Judgment no 3-2-1-64-15 of the Supreme Court, 26 November 2015: Traffic accident, defences against strict liability

Legal problem (I) What defence can be used in cases of strict liability?

Estonian Insurance Dispute Commission: mixed fault (both parties are at fault to 50 %) prevents the right to claim damages

Estonian LOA, §1057: A direct possessor of a motor vehicle shall be liable for any damage caused upon the operation of the motor vehicle, unless: …3) the damage is caused by force majeure or by an intentional act on the part of the victim; ….

PETL art. 7:102: two defences against strict liability - fault of the victim or conduct of the victim

Irene KULL

Estonia

COMMENTARY Core principle from Hill v Chief Constable of West

Yorkshire (1989): police do not owe duty to protect individual members of public from crime ▫ Hill concerned police failure to detect/detain known criminal ▫ No duty as insufficient proximity of relationship and policy

concerns (defensive policing/diversion of resources)

Courts have since refined policy justifications underlying Hill and noted that duty could arise in exceptional cases

Nevertheless, Hill applied to cases involving police failure to respond to specific threats of imminent injury which some argue should be treated differently

Michael a further attempt to challenge the scope of Hill

COMMENTARY: MINORITY REASONING Reasoning grounded in ‘true ratio’ of Hill: no duty

UNLESS proximity of relationship and fair, just and reasonable to impose duty ▫ Proximity primarily dependent on facts and quality of information

police have (can exist where police given information of specific and imminent threat)

▫ Lack of evidence to support feared detrimental effect on policing in tension with principle that wrongs should be remedied

Lady Hale: ▫ Analogous case law concerning social services supported finding

of duty and police duties under art. 2 and 3 ECHR mean that policy justifications for absence of duty ‘largely ceased to apply’

COMMENTARY: MAJORITY REASONING Reasoning grounded in general common law principles:

no liability for harm caused by third parties part of wider rule that generally no liability for omissions

Two exceptions that create sufficient proximity (control and representation/reliance) not applicable on facts

Incremental development of negligence requiring analysis of previous cases suggested that not appropriate to develop new exception

Carving out exceptions would create unclear parameters and arbitrary dividing lines

Whilst criticisms of defensive policing ‘have force’…

COMMENTARY: MAJORITY REASONING Not in public interest for police priorities to be affected

by risk of being sued AND speculative to assume that imposing a duty would improve police response to domestic violence

Does not follow from setting up of protective system from public resources that public should bear additional burden of compensating for harm caused by third party

ECHR claims have different objectives from civil actions For Parliament, not courts, to decide if compensation

should be awarded beyond that provided by state-run Criminal Injuries Compensation Scheme

See Annette MORRIS’ CV on page 39


Why fault was considered as defence? Estonian CC from 1965 (Socialist) provided strict liability of possessors of motor cars. In court practice strict liability of possessors of cars was applied towards third persons and fault liability between the possessors of the cars.

Why? mandatory regulation (ordinance) adapted by the Supreme Court of the Soviet Union explaining the application of principle of strict liability.

Why now? Interpretation and application of the law originating from Soviet legal system is still used in practice despite Supreme Court judgment from 2007) .

Culturally determined understanding of liability?

Judgments

County Court dismissed the claim.

The Circuit Court quashed the county court’s decision and made a judgment granting the claim in part, to the extent of €9,159.34.

The Supreme Court quashed the circuit court’s decision and referred the matter back to the same circuit court.

Judgment of the Supreme Court Legal problem I: strict liability between possessors of the vehicles

Supreme Court: strict liability is applicable also between the possessors of vehicles. If both drivers violated the requirements for safe road use provided for in the Traffic Act and if their share in the accident was, given their behaviour as well as the operational risks arising from their vehicles, more or less equal, the court had a reason to reduce the compensation of proprietary damage awarded to the claimant by presumably 50% under subsection 1 of § 139 of the LOA.

Legal problem II: reduction of compensation based on § 139 of the LOA

Supreme Court continued to develop its case-law concerning determining the extent of compensation for damage in the event of a traffic accident. - upon reduction of the compensation for damage under

§ 139 (1) of the LOA, the behaviour of the drivers involved in the accident as well as the operational risks of the vehicles must be taken into account.

- the traffic accident must be assessed as a whole

Judgment of the Supreme Court

Judgment of the Supreme Court

- if the share of the drivers involved in the accident was (considering their violations of the traffic rules and operational risk of the vehicles) more or less equal, both parties’ compensation must be reduced by 50%.

- it is obligatory to take into account respective risk factors that affected the occurrence of the traffic accident in the given situation.

- the compensation for damage is also reduced when it is not proven that either party violated the traffic rules

Comments In conclusion, the Supreme Court brought legal certainty into the topic, as the case-law of courts of lower instances remains hectic and controversial to date as regards the division of liability in the event of a traffic accident. There are still some open questions, such as: the proportion of shares in the compensation of the

parties to the accident the nature of the operational risks emanating from the

vehicle (objective or subjective) the amount of reduction of compensation if either party

violated the traffic rules.

See Irene KULL’s CV on page 38

Päivi KORPISAARI

Finland

Materials will be posted on the conference website (www acet ectil org) when available See Päivi KORPISAARI’s CV on page 37

Michel SÉJEAN

France

Materials will be posted on the conference website (www acet ectil org) when available See Michel SÉJEAN’s CV on page 41


Eugenia G DACORONIA

Greece

Plaintiff: acquitted after rape charges Sued for 2.25 million € Defendants: biggest German daily newspaper Appeal is pending

Factors considered Media coverage:

▫ Stigmatising ▫ Pre-judicial ▫ Incorrect/unbalanced ▫ Unnecessarily invasive

Text and photos High scale of distribution Ongoing, continuous reporting

Decision 38 violations of plaintiff’s privacy 635,000€ compensation plus interest and legal fees Negligence No intention, no collusion Balance: freedom of press – personality rights

First instance decision, appeal pending

Brief Analysis Would mark new record for compensation in press law

▫ Stigmatising and invasive media coverage: 635,000€ ▫ Repeated fictional reports on private life: 400,000€ ▫ Error that led to imprisonment: 150,000€ ▫ Forced commercialisation of wedding, inter alia: 92,032.54€ ▫ Untrue factual claims: 25,564.59€ ▫ Untrue factual claims: 20,000€ ▫ Wrongful display as neo Nazi on TV: 5,000€ ▫ Unfounded reporting: 5,000€ ▫ Untrue and slanderous reporting: 5,000€

German law of damages very case based ▫ -> transparent, coherent, but conservative

Could this case be a game-changer?

See Jörg FEDTKE’s CV on page 35

Jörg FEDTKE (presented by Felicitas SCHAD)

Germany

Tort action against a tobacco manufacturer

Areios Pagos 1157/2015

a) Brief Summary of the Facts

A, a heavy smoker, smoking at least five packets of

cigarettes per day for 35 years, died because of lung

cancer at the age of 61. His close relatives filed an action

for pain and suffering against B, the tobacco

manufacturer, alleging that the lung cancer and the sub-

sequent death of A was connected to the heavy

consumption of tobacco and that B was liable.


b) Judgment of the Court A great number of scientific findings has proven that the consumption of tobacco and exposure to it may lead to diseases, disability, cancer and death and that tobacco products are processed in such a way that they create dependence.

In the particular case, however, A, being a skillful businessman, placed in a better position than the average tobacco consumer, could not have been ignorant of the risks that tobacco poses to human health, already known by the public by the time he had started his habit in 1966.

The defendant tobacco company did not violate its obligations regarding the labelling, advertising and promotion of its products and complied with all the legal provisions. Stopping selling cigarettes is not included in the measures of diligence to be taken.

A breach of the legitimate expectation concerning the safety of tobacco use cannot be founded, as the defendant was well aware of its serious negative consequences to his health and, despite that, he willfully started and continued his habit of smoking a large amount of cigarettes on a daily basis.

Besides, the company’s behaviour cannot constitute the criminal act of exposure, according to art 306 GPC, as the tobacco factory did not have a specific legal obligation to prevent the victim’s death, given that it does not appear before the legal order as a guarantor of the smoker’s health and life.

Accordingly, the Court of Cassation confirmed the decision of the Court of Appeal that rejected the relatives’ action for compensation for pain and suffering.

b) Judgment of the Court The mere violation of an existing obligation does not constitute a tort. It is possible, however, that the culpable act or omission, by which the contract is violated, gives at the same time ground to liability in tort. This happens when the act or omission would have been unlawful even without

the existing contractual relation as infringing a right that had to be respected. As regards legal entities, they have a right to claim compensation for moral harm, when their credibility, fame, occupation or future have been affected.

c) Commentary This is, according to my knowledge, the first decision of the Court of Cassation in Greece that deals with the issue of whether a tobacco company can be held liable for the death of a heavy smoker because of lung cancer.

The Court considered that the smoker, exercising his right to self-determination, consciously chose to start and continue smoking cigarettes - which are not forbidden substances - although he knew the serious negative consequences of the use of the tobacco to his health.

The action was correctly founded on the provisions of tort, as all the necessary presuppositions for tortious liability were met. In particular: a) A not only omitted, out of negligence, to take all safety measures imposed under the circumstances but also did not use experienced

personnel for the execution of the works and b) his behaviour was unlawful, as his omissions were contrary to the general duty not to culpably cause damage which is imposed by law according to art 914 GCC; these omissions would have been unlawful even without the contractual relation between A and the Church.

Concurrence of Contractual and Delictual Liability.

Compensation of the Moral Harm of a Legal Entity

Areios Pagos 1156/2017

As a consequence, the Church suffered damage amounting to the total amount of €30,814, due to A’s culpable and unlawful behaviour. In addition, it also suffered moral harm, as its cultural and religious identity as well as its religious feelings and those of all parishioners were

infringed by the collapse; the monetary compensation to be paid for the non-material damage, taking into account the particular tort, the circumstances under which it was committed, the extent of harm sustained and the financial and social status of both litigants should amount to € 5,000.

a) Brief Summary of the Facts The dome of the Sacred Cathedral of the Assumption of Mary in Trikala, a church built in the 17th century and classified as a historical monument, collapsed during the works of restoration un-dertaken by contractor A.

The church filed an action in tort against A seeking damages as well as com-pensation for its moral harm on the ground that the collapse of the dome, which entailed as a consequence the loss of the historical and archeological value of the church, caused deep sorrow to the legal entity and to the inhabitants of the area.

c) Commentary It is well established in Greek theory and jurisprudence that also a legal entity can sustain moral harm, when aspects of the personality that also suit a legal person, such as fame, reputation, commercial credibility, or the name of the legal entity are offended.

What is of interest in the particular case is that the plaintiff is a church and that the Court has held that monetary compensation for moral harm can also be sought when the cultural and religious identity is infringed.

See Eugenia G DACORONIA’s CV on page 34


Eoin QUILL

Ireland

LM v The Commissioner of An Garda Síochána [2015] IESC 81

Two IESC appeals from IEHC joined Lockwood v Ireland Noted in ETL 2010 & LM (2011)

Facts in Lockwood BL made a rape complaint to the police Invalid power of arrest used Evidence obtained was excluded Prosecution collapsed & accused acquitted BL sought damages for negligence IEHC held no duty of care in negligence

▫ Duty would be difficult to define & would inhibit the police in the performance of their functions.

BL appealed

Facts in LM LM reported her rape to police in May 1990 English CPA contacted Garda September 1996 Alleged perpetrator extradited & convicted in 1998 Conviction quashed by CCA December 2001 Judicial review to preclude retrial granted to accused LM suffered PTSD & sued for damages IEHC held no duty of care in negligence LM appealed

Comment Clarifies the role of hearings on preliminary issues Does not determine the duty of care issue

▫ Casts doubt on a broad immunity expressed in general terms

▫ Is sensitive to factual variations in this area IESC shows willingness to engage more extensively with

foreign cases and with academic commentary

Judgment Appeals allowed - IEHC decisions set aside Complexity of the issues raised are not amenable to

determination as a preliminary issue Full trials of both cases in the IEHC ordered

See Eoin QUILL’s CV on page 40

Attila MENYHÁRD

Hungary

Materials will be posted on the conference website (www acet ectil org) when available See Attila MENYHÁRD’s CV on page 38


Agris BITĀNS

Latvia

Judgment of the Supreme Court of the Republic of Latvia, Department of Civil

Cases, 5 March 2015, No SKC-250/2015: On the liability of a possessor of source

of abnormally dangerous activity

Facts (1) LZ brought a claim against a public transportation company in Riga for compensation of pecuniary loss (loss of profit due to the loss of working capacity approx € 101,751) and non-pecuniary loss (for mutilation approx € 76,960 and for moral harm approx € 81,516) caused as a result of a traffic accident. The damage was caused during an accident in a bus, when the driver sharply braked and LZ, as a passenger standing in the bus, fell against the driver’s cabin. LZ suffered moderate bodily injuries. Due to ‘explosive’ spinal compression fracture, she underwent surgery in hospital and recovery period was more than 10 months.

Facts (2) The claimant became a disabled person (Group 2). As a result of body injuries, her spinal vertebras were broken and shattered, permanent surgical rods had been inserted in spine, etc. Until the end of her life, the claimant will suffer pain, should wear a corset, and her physical activities will be limited. The accident and its consequences were a severe negative moral experience for the claimant and her family. The defendant’s civil liability was insured pursuant to the Compulsory Civil Liability Insurance of Owners of Motor Vehicles Law.

Facts (3) The claimant suffered personal injury as a result of illegal behaviour of the third person – another driver, who was not identified. Since neither criminal nor administrative liability of bus driver had been determined by official institutions, the bus did not inflict personal injury on the plaintiff. Accordingly the bus company has no civil liability for injury. Since identity of another car driver was not discovered, the Guarantee Fund paid insurance indemnity in the amount of approx € 21,573 (LVL 15,159) including compensation for non-pecuniary loss under art 51. The second instance court rejected the claim. The claimant submitted a cassation appeal.

Main questions 1. How is a carrier’s strict liability (liability without fault)

applicable in such situation? 2. What is liability of an owner of a vehicle as a source of

an abnormally dangerous activity under part 2 art 2347 of the Civil Law?

3. Is the defendant liable for non-pecuniary loss as a result of a road traffic accident if the defendant is not culpable of this accident?

Judgment of the Court (1) The judgment was passed in extended composition of seven judges. The Department of Civil cases, after examining the legality of the judgment, concluded that the judgment can be left unchanged.

Elena BARGELLI

Italy

Materials will be posted on the conference website (www acet ectil org) when available See Elena BARGELLI’s CV on page 33


Loreta ŠALTINYTĖ

Lithuania

Lithuania: BD v MT, LSC 26 October 2015, No 3K-7-328-248/2015: Company Director’s Liability for Non-Pecuniary Damage to an Employee An employee lost 80 percent of his earning capacity due to a work

accident. The director of the employer company was found criminally liable

for this accident in January 2011; In February 2013 the employer was liquidated; damage to the

employee was not compensated, as the employee did not file the required paperwork and as a result was not included into a list of the company’s creditors.

The employee filed a direct claim for compensation against the director of the company.

The defendant replied that such a claim was not allowed by art 6.264 CC.

Applicable law Art 6.264 CC: An employer shall be liable to compensation for

damage caused by the fault of his employees in the performance of their service (official) duties. (official translation)

LSC case law interpreting art 6.264: ▫ If a company is under a bankruptcy process, the proper

defendant in employee compensation cases remains the employer. Therefore the employee who had been a victim of a work accident must present his claim for compensation in the company’s bankruptcy case. Failure to do so as a result of lack of care leads to a loss of the employee’s right to compensation of his damage. SB v RA, LSC 16 November 2005, No. 3K-3-579/2005.

Both the court of first instance and the court of appeal disregarded this rule and found in favour of the claimant.

LSC affirmed: reasoning In a situation when an employer is liquidated, the application of the

general rule that a victim may only claim compensation from the employer, not directly from the employee who inflicted the damage, would contradict the legislator’s intention to enhance the protection of victims.

The purpose of art 6.264 CC is to protect both the victim and the employee who inflicts damage – this mechanism ensures quick and actual compensation if the company is able to compensate the damage to the victim, However, if the company is not able to compensate the victim’s damage, the rule should be interpreted as protecting the interests of the victim, and not as releasing the direct tortfeasor from liability.

A contrary interpretation of art 6.264 CC would contradict the general rule of tortious liability and the principle of restitutio in integrum.

Relied on the commentary of art 6.102 PETL (liability for auxiliaries).

PETL art. 6:102 1. A person is liable for damage caused by his auxiliaries acting

within the scope of their functions provided that they violated the required standard of conduct.

Commentary: 19. Regarding the auxiliary’s personal liability, the Group

acknowledged the existence of the following two options, expressing a preference for the second:

(1) exemption from liability for damage caused to a third party in the case of slight or medium negligence, which seems to be the view of the majority of legal systems

(2) liability of the auxiliary, making him a potential defendant in a tort suit, combined with a right of recourse against the employer in the case of slight or medium negligence.

See Agris BITĀNS’ CV on page 33

Judgment of the Court (2)

The court established that the liability of a vehicle’s legal possessor, which bears liability without fault pursuant to part 2 of art 2347 of the Civil Law, is covered by the compulsory insurance of civil liability. The legislator established that the obligation to reimburse non-pecuniary loss for bodily injury lies with the culpable person (part 1 of art 2347). However, the legislator did not presume the same liability for non-pecuniary loss caused by a source of an abnormally dangerous activity since there are no changes made in the second part of art 2347 of the Civil Law.

Judgment of the Court (3)

The court determines that, if it was considered that the owner of a vehicle, the civil liability of which is insured, but whose wrongful action and fault in the traffic accident was not established would have to reimburse lost profit and non-pecuniary loss to the suffered party in the same way as the person who is at fault for causing the traffic accident, the compulsory insurance of civil lability of owners of vehicles would become pointless, as well as part 1 of art 2347 of the Civil Law. With this judgment the Supreme Court resigned from its conclusion in case No SKC – 549 of 6 February 2013 regarding liability of possessor of the source of an abnormally dangerous activity for non-pecuniary loss.

Commentary (1)

The Civil Department of the Supreme Court was not consequent regarding applicability of no-fault liability for vehicles as one source of abnormally dangerous activities. It is well recognised that, under part 2 art 2347, in the case of liability for damage caused by a source of an abnormally dangerous activity that a person whose activity is associated with such source shall compensate caused damage, unless he or she proves that the damage occurred due to force majeure, or through the victim's own intentional act or gross negligence. In this judgment it is unclear whether the Supreme Court has created an additional exemption from strict liability – lack of fault of possessor of source of abnormally dangerous activity?

Commentary (2) The Supreme Court provided a very narrow interpretation of part 2 art 2347, based only on literal interpretation. It means that a victim is less protected if he or she suffered bodily injury from a source of an abnormally dangerous activity. It is sad that the Supreme Court still continues to narrowly interpret art 1635 of the Civil Law regarding non-pecuniary loss before amendment which came into force on 1 March 2006. Even a narrow interpretation could not explain why the Court excluded compensation of lost profit which is pecuniary loss. Resignation from the conclusion in case No SKC–549 is illogical since it was based on conclusions from a book by Prof K Torgāns, who was one of the judges who adopted the previous judgment.


Giannino CARUANA-DEMAJO

Malta

Commentary A revolutionary decision in view of the previous

particularly restrictive judicial practice opens the gate to a wider application of art 6.264 CC,

allowing for direct liability of the person who had inflicted damage, even though its scope remains rather narrow – a) the employer must be liquidated before compensating the damage owed to the employee, b) the damage must have been caused by conduct which was accepted as criminal by a court of law, and c) the compensation of the damage sought must be causally linked with the crime.

the first explicit LSC reference to the PETL and their commentary See Loreta ŠALTINYTĖ’s CV on page 40

Malta

Non-patrimonial Damages

Jane Agius v The Attorney General (application noº 33/2014)

Constitutional Court, 14 December 2015

A small step forward

The facts

A convicted prisoner, who was also a drug addict, was regularly given medical treatment by the prison authorities for his addiction.

The treatment included the administration of methadone to counter withdrawal symptoms. The methadone was administered by a prison empoyee with no formal medical training.

The prisoner died as a result of methadone overdose.

The facts (II)

The deceased’s father filed a civil action against the prison authorities for damages resulting from his son’s death.

The father passed away before judgment was delivered and the action was continued by his sister, deceased’s aunt.

By a judgment of 1 April 2014 the civil court found that the prison authorities had been grossly negligent and ordered them to pay material damages of €38,213.

Artt. 1045 and 1046 C.C. 1045. (1) The damage which is to be made good by the person responsible in

accordance with the foregoing provisions shall consist in the actual loss which the act shall have directly caused to the injured party, in the expenses which the latter may have been compelled to incur in consequence of the damage, in the loss of actual wages or other earnings, and in the loss of future earnings arising from any permanent incapacity, total or partial, which the act may have caused.

(2) The sum to be awarded in respect of such incapacity shall be assessed by the court, having regard to the circumstances of the case, and, particularly, to the nature and degree of incapacity caused, and to the condition of the injured party.

1046. Where in consequence of the act giving rise to damages death ensues, the court may, in addition to any actual loss and expenses incurred, award to the heirs of the deceased person damages, as in the case of permanent total incapacity, in accordance with the provisions of the last preceding article.

The facts (III)

After the civil court judgment, the deceased’s aunt filed a constitutional action claiming: ▫ that the prison authorities’ failure to provide

adequately for the deceased’s well-being while in custody, resulting in his death, was a breach of his right to life (art. 2 of the ECHR); and

▫ that the fact that under artt. 1045 and 1046 the civil courts may not award non-patrimonial damages is a breach of the right to an effective remedy (art. 13 of the ECHR).

First Instance Judgment

There was a breach of the State’s positive obligations under art. 2 of the ECHR (right to life) due to a systematic failure to provide the deceased with proper care as required by his condition;

The fact that the civil courts cannot award non-patrimonial damages does not amount to a breach of art 13 because such damages may be awarded by the court having constitutional jurisdiction;

Defendants are to pay plaintiff €5,000 by way of non-patrimonial damages for the breach of art 2 of the ECHR.


Anne LM KEIRSE

The Netherlands

Judgment of the Constitutional Court

Plaintiff’s relationship with her nephew was remote: she had never shown any interest in him during his lifetime and there was no effective or affective relationship between the two.

The declaration by the civil court of defendant’s responsibility for the nephew’s death and the award of material damages was sufficient satisfaction; plaintiff had not suffered any moral damages.

The appeal was therefore allowed and the non-patrimonial damages awarded by the first instance constitutional court were revoked.

Judgment of the Constitutional Court Further comments made obiter by the court:

▫ Artt. 1045 and 1046 regulate only damages arising out of tort;

▫ In the present case there was an underlying relationship between the prison authorities and the deceased;

▫ Although the relationship was not contractual, still it was not a ‘pure’ tort situation;

▫ There is therefore no obstacle based on artt. 1045 and 1046 to the award of non-patrimonial damages by the civil courts in appropriate cases.

See Giannino CARUANA-DEMAJO’S CV on page 34

FROM THE NETHERLANDS: A historical judgment

The Hague District Court 24 June 2015, ECLI:NL:RBDHA:2015:7196

Climate Change Litigation against States

For failure to adequately combat climate change

Dutch court ordered the Dutch government to beef up its climate policies: By the end of 2020, CO2 emissions need to be reduced by

at least 25 % compared to 1990

Implications beyond climate policy beyond the Netherlands

Present mitigation efforts: EU: - 20% (cp. 1990) by

2020 The Netherlands: - 17% (cp.

1990) by 2020

Necessity: Industrialised countries should

reduce CO2 emission with 25% - 40% (cp. to 1990) by 2020 (ultimately)

Dutch Foundation Urgenda

urgent & agenda – 886 Dutch citizens

Request to the State: 12 Nov 2012 Writ of summons against the State: 20 Nov 2013

Main Questions

Can Urgenda force the Dutch State to limit the emission of greenhouse gasses, CO2 in particular, further than the intentions of the Dutch government?

What is the severity of the problem? Does the Dutch State owe a legal duty towards Urgenda? Does this matter belong in the courtroom?

Claim Urgenda

The State acts unlawfully if it fails to bring into effect a reduction of the annual greenhouse gas emissions of 40% or at least 25% by 2020 (cp. to 1990)

Declaratory relief

Based on: Statutory duty of the State to protect and improve

the country’s environment (art. 21 Convention) Human Rights (arts. 2 & 8 ECHR) Duty of Care (art. 6:162 CC)

Assessment of the court

The court relies on the facts agreed upon by both parties Serious problem: worldwide reduction of emissions is

necessary in order to prevent irreversible climate change The State owes in principle a legal obligation towards

Urgenda to make sure that emissions in the Netherlands will be cut by at least 25% compared to 1990 by the end of 2020

The trias politica (separation of powers) is not a decisive counter-argument


Knut Martin TANDE

Norway

Materials will be posted on the conference website (www acet ectil org) when available See Knut Martin TANDE’s CV on page 42

Ewa BAGIŃSKA

Poland

See Anne KEIRSE’s CV on page 36

SN of 17 September 2014, I CSK 682/13 An 85-year-old man went to his bank. After an hour he felt an immediate need to use the toilet. Having noted that the area where the toilets used to be toilets was closed and marked as utility rooms, the plaintiff asked the guard about the way to the toilets. The guard informed him that he should go to the nearest restaurant. The plaintiff turned back to the counter and asked one of the employees, whose dismissive answer was the same Eventually, he was directed from one door to another, until they found a ‘utility room’, with no electricity.

FACTS P stained his clothes while using the toilet, which caused an odour. Because of this, distressed P went back home on foot, which was a great effort for him as he lived far away from the bank. P felt mentally broken and shaken. P informed a prosecutor, a sanitary inspection office and the press about the incident. In response to his complaint, the bank apologised for the inconvenience, but indicated that there is a public toilet in close proximity to the bank, in the underground passage. P felt insulted by the reply from the bank and sued for damages & for non-pecuniary remedies.

RULING

“Orders the State to limit the joint volume of Dutch annual greenhouse gas emissions, or have them limited, so that this volume will have reduced by at least 25% at the end of 2020 compared to the level of the year 1990”

Lower reductions would be unlawful against Urgenda

Request to the State: 12 Nov 2012 Writ of summons against the State: 20 Nov 2013 Hearing before the court of first instance: 14 April 2015 Verdict of The Hague District Court: 24 June 2015 Notice of Appeal: 23 Sept 2015 Despite pressure from parliament, scientists, companies and

citizens, refusal to pull the appeal

URGENDA versus THE NETHERLANDS

Believers States are meant to protect their citizens and if

politicians do not do this of their own accord, then the courts are there to help

A law suit brought out of love and compassion A courageous and visionary ruling Spectacular unprecedented landmark ruling Victory for the climate The first stone that sets an avalanche in motion Balanced constitutionalism in the face of climate change Courts can initiate change, provided that the other

branches of government are willing to accept it

Non-believers

The government, not the court, should set climate policies We should not take climate science to court Scientific disputes belong to the scientific community A violation of the separation of powers When all is politics, nothing is law Undesirable politics ≠ unlawful behaviour No legal grounds to require a stricter reduction policy Incompatible with EU law It is not the Dutch court, but the CJEU which is competent


Christian ALUNARU

Romania

André DIAS PEREIRA

Portugal

Materials will be posted on the conference website (www acet ectil org) when available See André DIAS PEREIRA’s CV on page 39

See Ewa BAGIŃSKA’s CV on page 31

The judgments of the DC and the CA

The DC: the bank employee infringed the dignity of P by rude comments; the letter sent by the bank has to be considered as a mockery, both leading to the infringement of dignity – art 23 and 24 Civil Code.

Award: 1) compensation - approx. €1,500, 2) Bank obliged to send a written apology to P and 3) Bank obliged to provide a toilet to its clients on the premises.

The Court of Appeal reversed the judgment as to 3) P cannot act on behalf of other clients of the bank and demand that everyone has access to a toilet.

The Supreme Court - dealt only with the problem of actio popularis

There is no statutory duty to provide a toilet to clients on a bank’s

premises. However, the bank might have unlawfully infringed P’s personal interests, not only by failing to provide access to a toilet, but also by creating a risk that this will happen again in the future.

BUT: no actio popularis allowed – P cannot assert claims on behalf of other customers, whose personal rights might be threatened. Personal interests are individual and the plaintiff can only seek protection of his own interests.

Result: a modification of the judgment by the SCt: the bank is obliged to provide a toilet to P in the future, but is not obliged to provide a toilet to all other customers.

ROMANIA High Court of Cassation and Justice, Decision no 279 of 28 January 2015

Patient hospitalised due to a traffic accident Hospital bound to pay material and moral damages because of the infection with Staphilococcus Aureus contacted during hospitalisation Material damages must include the cost of surgical intervention abroad

Substantive law issue:

The topic of the liability of physicians and of medical institutions has been very much discussed in Romania in the last years (see our reports for 2010, 2011 and 2013)

The issue this time: whether the material damage must include the cost of medical interventions in other EU countries (Germany, in this case)

Problems of procedure:

The Old Civil Procedure Code (1865) applicable – because the New Civil Procedure Code (Act 134/2010) applies only to trials started after its entry into force – 1 September 2012

The request for additional € 500 as material damages and € 250,000 as moral damages in appeal is inadmissible Request for ‘comprehensive amount”’ before the first instance tribunal ‘Damages appeared after the first instance decision’ (Art. 294) are those damages that were requested already by means of the initial file suit, but because they are continuous, they continue to accumulate after the judgment in the first instance tribunal was given, so they need to be updated

Romanian legislation only provides for partial reimbursement of medical care costs in other EU countries: on the basis of E 112 form, the reimbursement is limited to certain medical services that would be benefited in Romania (the so-called “basic package of medical services”) and the amount is limited to the equivalent cost of that treatment in Romania.

The medical fees of physicians and of medical personnel abroad not included within the amount reimbursed.

The reimbursement of such costs should have been awarded by the courts on request of the claimant.


Martin A HOGG

Scotland

Montgomery v Lanarkshire Health Board (United Kingdom Supreme Court)

The pursuer, Mrs Montgomery, gave birth to a son on 1 October 1999 at Bellshill Maternity Hospital in Lanarkshire, which was owned and managed by the defender.

As a result of complications during the delivery, her son was born with severe disabilities.

The pursuer sought damages on behalf of her son for her son’s injuries, arguing that they were caused by the negligence of a consultant obstetrician and gynaecologist employed by the defender who had been responsible for the pursuer’s care during her pregnancy and labour, and who had also delivered the baby.

The facts

Mrs Montgomery alleged two specific grounds of negligence against the defender:

(1) that the doctor failed to give her advice about the risk of shoulder dystocia (the inability of the baby’s shoulders to pass through the pelvis) in vaginal birth, and of the alternative possibility of delivery by elective caesarean section;

(2) that the doctor had negligently failed to perform a caesarean section in response to abnormalities in labour indicated by cardiotocograph (CTG) readings.

See Christian ALUNARU’s CV on page 32

Certainty of the damage:

The opinion of the first two courts: the requested damage lacks certainty

The medical letter released by the German hospital does not have the standard form of a payment document, such as a receipt, invoice, payment order, etc. -> not recognised as evidence of damage

The High Court: the medical letter written on a standard form of the German hospital has the value of a ‘signed document’ (înscris sub semnătură privată), a type of evidence expressly provided by Art. 1176 of the Old Civil Code. Although the letter is written in Romanian, the claimant proved that the physician who wrote the letter is of Romanian origin and speaks Romanian.

The decision At first instance: judge rejected both grounds of alleged fault.

In relation to the first ground, he based his decision primarily on expert evidence of medical practice, following the approach laid down by the majority in the English decision Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital.

He also concluded that, even if Mrs Montgomery had been given advice about the risk of serious harm to her baby as a consequence of shoulder dystocia, it would have made no difference in any event, since she would not have elected to have her baby delivered by caesarean section.

(4) the assessment of whether a risk was material could not be reduced to percentages, but was fact-sensitive and sensitive also to the characteristics of the patient;

(5) the doctor was entitled to withhold from the patient information as to a risk if she reasonably considered that its disclosure would be seriously detrimental to the patient's health, but this therapeutic exception was limited, and the doctor was also excused from conferring with the patient in circumstances of necessity.

(6) In this case, it was it was incumbent on the doctor to have advised Mrs Montgomery of the risk of shoulder dystocia if she were to have her baby by vaginal delivery, and to have discussed with her the alternative of delivery by caesarean section because the risk of shoulder dystocia in this case was substantial. The doctor’s failure to do this amounted to negligence on her part.

On appeal, the first instance judgment was upheld by the Inner House of the Court of Session. The pursuer further appealed to the Supreme Court.

The Supreme Court determined that: (1) Mrs Montgomery had been entitled to decide which form of

treatment to undergo, and her consent was necessary before treatment was undertaken;

(2) the doctor had been under a duty to take reasonable care to ensure that Mrs Montgomery was aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments;

(3) the test of material risk was whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor was or should reasonably have been aware that the particular patient would be likely to attach significance to it;

(7) On the question of causation, the proper counterfactual enquiry to consider was Mrs Montgomery’s likely reaction if she had been told of the risk of shoulder dystocia, the only conclusion on the evidence being that, had she been told, she would probably have elected to have a caesarean section and the baby would then have been born unharmed.

The Supreme Court concluded that, the doctor having been negligent and this negligence having caused the injuries sustained by the child, the appeal should be allowed.


Commentary This is the most significant delictual Scottish decision of 2015,

and was intended by the Supreme Court to determine the law in the rest of the UK as well as Scotland.

Basic test for the duty of care applicable to medical practitioners (laid down in 1955 in Hunter v Hanley) is one of the ‘professional man of ordinary skill … acting with ordinary care’ (approved of in the English courts in Bolam v Friern Hospital Management Committee).

Later, a more focused approach adopted in cases where alleged negligence was a failure to warn of a risk: in 1985 Sidaway held doctors would not ordinarily be held to be negligent if they followed the practice of a responsible body of medical opinion.

Commentary Medical consensus at the time of Sidaway: risks of less than

approximately 1% need not ordinarily be communicated to patients.

Approach of Supreme Court radically changes the existing law, departing from the paternalistic spirit of Sidaway: much greater emphasis on patient autonomy and decision-making in relation to risks relating to medical treatment.

Decision embeds a growing trend already apparent in the lower courts towards a more patient-orientated approach in more recent years: e.g., for instance, in Pearce v United Bristol Healthcare Trust (1998) Lord Woolf said:

Commentary “if there is a significant risk which would affect the judgment

of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or he should adopt.”

Supreme Court developed law by making clear that the assessment of ‘significant’ risk is not a matter of percentages: a ‘material’ risk (the Montgomery description) is a subjective, patient-focused assessment, denoting a risk to which a reasonable person in the patient’s shoes would attach significance.

Commentary Reasonable patients may well consider that even statistically

insignificant risks are significant to them if materialisation of the risk would result in serious, adverse consequences.

So, doctors are now on warning that risks which they might previously not have been legally required to mention must now proactively be raised with the patient and, if the patient wishes, must become the subject of discussion and appropriate, ‘comprehensible’ advice.

Supreme Court suggests some guidelines on how medical practitioners should approach discussion about risk to patients: e.g., doctors will not be required to discuss risks inherent in treatment with patients who have made it clear that they do not want information on such matters (see para 85).

Anton DULAK

Slovakia

Judgment of the Constitutional Court of the Slovak Republic of 13 August 2014, Case No.: I. ÚS 426/2014-31

Facts: The claimant made her claim for compensation of immaterial harm inflicted during a car road accident. Through the title of protection of personality (art 11 CC), she demanded financial compensation from the defendant of the first degree (driver of the vehicle), second degree (transporter), and third degree (insurer), in the amount of € 10,000, which was to compensate for her bodily harm, bodily integrity; and an additional amount of € 5,000 for infringement of her private/personal and family life.

The court of first instance obliged the defendant of the first degree to compensate the claimant with the amount of € 3,000. Claims against the other defendants were dismissed. Regional court, in this case the appellate court, annulled this ruling and brought the matter to another hearing. The claimant made a constitutional appeal against this ruling, claiming breach of her constitutional right to health, bodily integrity, as well as the right to privacy and family life.


Judgment:

The Slovak legal regulation applies both the enactment for compensating pain and reduced capacity for social life in cases of accusations concerning immaterial and bodily harm. These claims (pain and reduced capacity for social life), as asserted by the claimant, are claims of immaterial nature compensated according to art 444 of the Civil Code. The Slovak legal system does not specifically modify different claims of immaterial nature. There is, as a result, no room to apply such components of law through protection of personality.

See Martin A HOGG’s CV on page 36

Commentary Also, it is for the individual doctor to decide exactly how best to

explain risks to the patient, bearing in mind that the explanation must be comprehensible to the patient in question (also para 85).

This may mandate a more technical explanation to patients with a higher level of knowledge of medical procedures, without obviating full, if less technically worded, disclosure to patients not possessed of such knowledge.

The UK General Medical Council advises practitioners of appropriate steps to be taken in patient consultations, stating in general terms that ‘discussing risk with a patient shouldn’t be limited to a numbers game; it should be part of a dialogue’ and that the ‘key is to understand what matters – or is likely to matter – to the individual patient’; it has also issued more specific guidance on side-effects, complications and other risks.

Conclusion Overall observation: The decision of the Supreme Court is a

welcome one, and reflects a shift in the way that medical practitioners and patients were already viewing the doctor-patient relationship. No longer are patients simply seen as the recipients of care decisions made in their best interests: they are co-operative partners in a process of dialogue designed to ensure fully-informed consent by them to proposed treatment.


Gregor DUGAR

Slovenia

See Anton DULAK’s CV on page 35

Judgment of the Supreme Court of the Slovak Republic of 28 May 2014, Case No 7 Cdo 65/2013. (3 months before)

Judgment:

Two grounds of claims according to art 11f and art 444f – are two separate concepts, which, in a sense, compete. [...] It cannot be understood that compensation for pain suffered and compensation for reduced capacity to engage in social life based on application of Act No. 437/2004 Z.z. also covers a violation of one’s dignity, private or family life.


Approach: - linguistic and grammatical interpretation of the terms ‘damage’

and ‘immaterial damage’ as they appear in the 1964 version of the Civil Code and in Act no. 381/2001 Coll on Compulsory Contractual Motor Vehicle Third Party Liability

Argument: - ‘damage’ and ‘immaterial damage’ are not synonymous terms.


Art 11f CC - Personality rights - one’s

dignity, life, health, private and family life, too.

- Judicial discretion full - Responsibility of inflictor

Art 444 CC + Act No. 437/2004

- Pain suffered and compensation for reduced capacity to engage in social life

- Judicial discretion limited (basic score scale + 50% max.)

- Responsibility of driver (inflictor)+transport company+insurance company


Open questions:

- The concept of damage and its interpretation (‘euro-conforming’)

- “Ne bis in idem” principle

- …

Judgment of the Supreme Court II Ips 128/2013, 23 April 2015: Tortious Liability of Drivers of Motor Vehicles in a Traffic Accident Involving At Least Two Motor Vehicles

Brief Summary of the Facts As the driver of a car, the defendant failed to see the

plaintiff, who was riding a motorcycle in the opposite direction, when turning left and thus denied him priority and crashed into him. The defendant responded inappropriately by turning towards the direction of driving of the defendant.

The plaintiff was driving in his own lane and wearing a safety helmet, although his headlights were not on.

Judgment of the Court The Supreme Court confirmed the second instance

judgment. It stressed that the contribution of the drivers of both

motor vehicles to the damage that occurred must be assessed in relation to all the circumstances of the specific case and suitable weight must be given to the circumstance that was the decisive cause of the damage. It is also necessary to take into account the seriousness of any road traffic regulations violated by each of the drivers of the motor vehicles and the level of danger that derives from operating an individual motor vehicle.

The plaintiff was driving too fast, 33% over the prescribed limit. If the plaintiff had not been exceeding the speed limit, he could have swerved in good time and avoided the collision with the defendant.

The first instance court granted the plaintiff’s claim for compensation of material and non-material damage and assessed his contribution at 40%. The second instance court reduced the plaintiff’s contribution to the damage to 30%.

The defendant violated the rule of priority in road traffic so he contributed the predominant part to the occurrence of the damage. The plaintiff also contributed to the occurrence of the damage because he did not have his headlights on, because he was exceeding the prescribed speed limit and because he responded inappropriately to the traffic situation. The Supreme Court concluded that the defendant contributed 70% to the occurrence of the damage and the plaintiff 30%.


Albert RUDA

Spain

See Albert RUDA’s CV on page 40

Commentary In Slovenian theory and court practice, there is no doubt

that a motor vehicle is a dangerous object and that the use of a motor vehicle is a dangerous activity. The liability of a driver for damage caused to a third person is strict. With this form of tortious liability, culpability is not a presumption for the occurrence of tortious liability (para 2 art 131 of the Code of Obligations) and it is assumed that the damage occurred because of the activity of the motor vehicle (art 149 of the Code of Obligations).

In a case in which, because of a traffic accident involving at least two motor vehicles, injury to both drivers of the motor vehicles occurs, the rules on strict liability do not apply since, under these rules, each of the drivers would be exclusively responsible for the damage to both vehicles, which is illogical. The Code of Obligations therefore, in special provisions, regulates the tortious liability of drivers for damage that drivers of motor vehicles cause mutually (art 154 of the Code of Obligations). It thus regulates cases in which one of the drivers is exclusively to blame for causing the traffic accident (para 1 art 154 of the Code of Obligations), in which both drivers are to blame for causing the traffic accident (para 2 art 154 of the Code of Obligations) and in which neither of the drivers is to blame for causing the accident (para 3 art 154 of the Code of Obligations).

If both parties are to blame for the occurrence of a traffic accident, each driver is liable for all the damage in proportion to the level of his fault (para 2 art 154 of the Code of Obligations). In this case, fault is not a premise for establishing the tortious liability of the drivers but only a criterion for dividing the damage between them. In cases in which the rule on suitable speed and the rule on priority roads clash, the driver who violates the rule on priority roads according to court practice generally bears a greater share of liability unless special circumstances exist.

See Gregor DUGAR’s CV on page 35

No compensation for Thalidomide victims

STS 20 October 2015

The Spanish Supreme Court (Tribunal Supremo) quashes the decision by the lower court which had awarded compensation for ‘late damage’ (daños tardíos)

#Prescription #Product liability

New compensation scheme for death and personal injury resulting from road traffic accidents Act 35/2015, of 22 September, de reforma del sistema para la valoración de los daños y perjuicios causados a las personas en accidentes de circulación

#Personal injury

You have a right to be forgotten by Google, not by the newspaper archive

STS 15 October 2015

The newspaper editor (Ediciones El País SL) has an obligation to exclude indexation by external robots, not an obligation to remove the personal data from the news archive.

#Privacy #Data protection


Håkan ANDERSSON

Sweden

Materials will be posted on the conference website (www acet ectil org) when available See Håkan ANDERSSON’s CV on page 32

Peter LOSER

Switzerland

Asbestos Litigation Pro Memoria:

ECHR Decision Howald Moor and Others v Switzerland of 11 March 2014: Period of Limitation too short in cases of injuries with long latency period

Legislation: Revision Period of Limitation for Personal Injuries 30 – 20 – 20 years? Retroactive Effect for time-barred asbestos claims?

Settlement Fund for Asbestos Victims

Wrongful Life Swiss Federal Court for the first time decided on

wrongful life 4A_551/2013 of 15 December 2014

Claim of the child born disabled denied Child had no right to not have been born

No violation of personal rights of self-determination

Damage to Things Damages for scratched window glass Swiss Federal Court 4A_61/2015 of 24 January 2015

Judgment In the case of irreparable property, the injured party -

as in the case of a total damage - has a right to claim the costs for replacement, regardless of whether the property has become inusable in its substance or not.

Carrying out the replacement is not necessary. Presenting of an offer for the repair works is sufficient.

Facts Cleaning institute hired for cleaning all window panes of

a newly built villa Most of the cleaned glass surfaces had scratch marks on

the outside No impact on the capability for use of the windows Impaired view Owner claimed € 400,000 from the cleaning institute to replace 78 of 109 window panes

Commentary 1 Costs for replacement in the case of total damage Less value due to usage:

Amount new for old is deducted


Thomas THIEDE

European Union

See Peter LOSER’s CV on page 38

Commentary 2 Damages for virtual replacement costs Residual value of damaged property has to be deducted PETL Art. 10:103. Benefits gained through the damaging event When determining the amount of damages, benefits which the injured party gains through the damaging event are to be taken into account unless this cannot be reconciled with the purpose of the benefit.

Commentary 3 Damages for virtual repair costs Repair costs may exceed the amount of the incurred

decrease in value Idea of natural restitution / restoration in kind PETL Art. 10:203. Loss, destruction and damage of things (…) However, if the victim has replaced or repaired it (or will do so), he may recover the higher expenditure thereby incurred if it is reasonable to do so.

European Union

CJEU 5 March 2015 – Joined Cases C-503/13 and C-504/13, Boston Scientific Medizintechnik v AOK Sachsen-

Anhalt and Betriebskrankenkasse RWE, ECLI:EU:C:2015:148

Bernhard A Koch/Thomas Thiede

Is a product already defective within the meaning of art 6 Product Liability Directive (PLD) if only some products of the same type had shown a significantly increased risk of failure in the past, but where no such malfunction had ever been detected in the actual product concerned?

Are the costs of preventive replacement surgery ‘personal injury’ for purposes of art 1 and art 9 (a) PLD and therefore a loss covered by this liability regime?

2 Bernhard A Koch/Thomas Thiede | European Union

Boston Scientific v AOK and BKK RWE

Article 6 PLD A product is defective when it does not provide the safety which a person is entitled to expect, taking all circumstances into account, including: (a) the presentation of the product; (b) the use to which it could reasonably be expected that

the product would be put; (c) the time when the product was put into circulation.



‘damage caused by death or personal injuries’ must be interpreted broadly, ‘having regard to the objective of protecting consumer health and safety pursued by that directive ‘

If a product does not come up to reasonable safety expectations, the cost of measures taken to restore that level of safety should be recoverable



‘in the light of their function and the particularly vulnerable situation of patients using such devices, the safety requirements for those devices which such patients are entitled to expect are particularly high’

It is ‘possible to classify as defective all the products in that group or series, without there being any need to show that the product in question is defective’



replacement surgery falls within the notion of personal injury

second operation: intrusion into physical integrity of the patient



See Thomas THIEDE’s CV on page 43


suspicion of a defect? threat to life

recommendations made as readily in the future?

7

risk of a defect constitutes a trigger for product liability

the actual defectiveness of the item

concerned is no longer relevant


Bernhard A KOCH

Comparative Remarks

Materials will be posted on the conference website (www acet ectil org) when available See Bernhard A KOCH’s CV on page 37

26 Special Session: Liability for Unknown Risks 15th Annual Conference on European Tort Law 27

B. Unforeseeable risk of harm Risk of harm may have been unforeseeable to the reasonable

person in the shoes of the defendant because: (1) the harm was of a type not reasonably foreseeable in the

circumstances (even though harm of other sorts may have been) or

(2) the mechanism by which the harm was caused was not reasonably foreseeable (even though harm by other mechanisms may have been) or

(3) harm to someone in the position of the claimant was unforeseeable (even if harm to others may have been).

Case law exemplifies these statements:

Case law Bourhill v Young (1942): psychiatric harm suffered by passer-

by witnessing aftermath of accident. Harm of this sort to someone in the pursuer’s position was

unknown, and could not reasonably have been known. Hughes v Lord Advocate (1963): boys injured by explosion caused

when gas lamp fell into uncovered manhole. Liability so long as the sort of injury sustained (burns) had been

foreseeable. Cf Doughty v Turner Manufacturing (1964): no liability where

asbestos vat lid knocked into cauldron of metal causing explosion. No liability because mechanism of harm was unforeseeable. Are Hughes and Doughty reconcilable?

Case law National Coal Board v J E Evans & Co (Cardiff) Ltd (1951):

damage to underground cable. No liability, as type of harm and the mechanism by which it might occur were unknowable.

Cambridge Water v Eastern Counties Leather plc (1993): source of groundwater polluted when chemicals leaked into water table. Harm of this type was unforeseeable to defendants.

Cases disclose the fault-based requirements that the harm suffered (1) was a type of harm, and was caused by a type of mechanism, which was reasonably foreseeable as a likely consequence of the defendant’s fault, and

(2) was caused to a party falling within the class of people reasonably foreseeable as likely victims of the defendant’s fault, act as a break on fault-based recovery, protecting defendants who were not culpably in ignorance.

Strict liability Strict liability exists wherever it is accepted that a defendant

discharged the necessary standard of care in the circumstances, yet liability for harm is nonetheless imposed.

Under strict liability, the burden of unknown risk rests upon the causer of harm (whether that party is careful or negligent), tort law making that party, in effect, an insurer in respect of any loss caused through materialisation of the unknown risk.

Very few examples of strict liability in Common law systems. They include liability for harm caused by defective products

(discussed in detail later), by animals, by emissions of radiation from nuclear installations, by civil aircraft while in flight, and in relation to the underground storage of gas.

Introduction & Basic tort law principles My perspective: mostly English law, but with some reference

to Scottish & US law also. A. Some basic tort law principles:

Tort law rests upon the idea of fault. Strict liability is an exception to this.

Fault implies that one could have, and should have, behaved differently: the defendant could have and should have foreseen the risk of, i.e. likelihood of, harm occurring.

Foreseeability of injury rests upon the premise that the defendant was able to conceive of the risk of injury occurring.

That premise is defeated in cases where the defendant could not have done so, because the necessary information about the likely risk of harm was unavailable to it.

Unknown/unknowable risks Lack of knowledge of risk by a reasonable person in the

defendant’s shoes might be: (1) because only a limited class of person is in possession of knowledge of the risk or (2) because no one, at the present time, has knowledge of the risk (e.g. because it relates to scientific or medical knowledge which has yet to be acquired by anyone, or at least anyone outside a very limited class).

Alternatively, one could use the term ‘unknown’ risks to describe both cases, and speak of risk ‘unknown to the defendant’ and risk ‘unknown to the reasonable party in the defendant’s shoes’ (the latter being the circumstances I have described as unknowable risks).

Basic tort law principles The perspective is of the imaginary reasonable person in the

circumstances of the defendant. Courts say: the ‘defendant knew, or ought to have known of’

the risk of harm. A terminological distinction to be drawn between ‘unknown’

and ‘unknowable’ risks: An unknown risk = one of which the specific defendant did

not, as a matter of fact, have knowledge. An unknowable risk = one of which no person in the

circumstances of the defendant could reasonably have been aware.

Consequences of concept of unknown risk

Some consequences: A risk is not unforeseeable merely because the defendant’s

inattentiveness or carelessness prevented him/her from appreciating the risk.

A risk is not unforeseeable merely because a cause intervened between the harm and the defendant’s conduct (something more is required to constitute what has traditionally been called a novus actus interveniens).

A risk is not unforeseeable merely because the specific defendant lacked the ability or capacity to foresee the risk, so long as the ordinary defendant in the defendant’s shoes could have done so.

A risk is not unforeseeable merely because the full extent of the harm which might result was not appreciated by the defendant.

SPECIAL SESSION: LIABILITY FOR UNKNOWN RISKS

Martin A HOGG

Liability for Unknown Risks: a Common Law Perspective


Volenti non fit injuria (assumption of risk) defence Successful utilisation of this fully exculpatory defence

necessitates an examination of whether a risk was unknown to the claimant.

Sometimes utilising volenti is excluded: see US employment law cases.

UK employment cases: common law protection extended to employees injured through fault of employers - if an employee continues to work, knowing of and having complained to his employer about a specific risk, he/she is not volens for the purpose of the volenti non fit injuria defence.

But, in the UK the defence is not excluded where the source of risk is caused by the employee’s own conduct: see ICI v Shatwell (1965).

Strict liability With strict liability, only if a defence relating to excusable lack

of knowledge is provided for will a defendant faced with unknown and unknowable risks of harm be able to avoid the consequences of such liability.

Even without such a defence, it may be possible for a defendant to shift the burden of strict liability through the means of insurance.

Insurance is compulsory in some areas: e.g. UK section 1(1) of the Employers’ Liability (Compulsory Insurance) Act 1969.

Product liability cases are one example where there is an unforeseeable risk defence to strict liability.

Volenti non fit injuria The question of risk in relation to volenti is what the actual claimant

knew, not what a fictitious person in his or her shoes ought reasonably to have known:

Lord Reid in ICI: ‘No one denied that a man who freely and voluntarily incurs a risk of which he has full knowledge cannot complain of injury if that risk materialises and causes him damage’.

Court is not concerned with whether claimant ought to have been more appreciative of the nature of a risk, to have (for instance) possessed the appreciation of a risk that a reasonable person in the claimant’s shoes might have had.

Note contrast between knowledge of risk enquiries directed at arguably culpable defendants & arguably risk-assuming claimants:

The enquiry directed against the arguably culpable defendant concerns its alleged fault, and in that enquiry what it knew, and what a reasonable person in its shoes would have known, is one part of what must be determined …

D. Product Liability Note: EU producers of goods may be entitled under national

legislation to a defence – the state-of-the-art/development risks defence.

Where this defence is available at a national level, liability is not in fact strict for producers.

EU Directive translated into UK law in the Consumer Protection Act 1987.

Section 2(1): where any damage is caused wholly or partly by a defect in a product, every person to whom subsection (2) below applies shall be liable for the damage.

Section 3(1): a product is defective ‘if the safety of the product is not such as persons generally are entitled to expect’.

A somewhat vague standard. Note: unforeseeable harmful effects of a product could conceivably, under this section, give rise to liability under the Act.

Volenti non fit injuria … whereas the enquiry directed against the arguably risk-

assuming claimant concerns what it alone knew of the risk and whether it accepted such risk, fault and the reasonable person playing no part in this enquiry. And, where contributory negligence is in issue, arguably culpable claimants also.

To summarise: where the defence of volenti is not otherwise excluded, a claimant against whom the defence is pled, is in a better position so far as unknown risks are concerned than the defendant in a fault-based action.

Such a claimant is not required to have shared a fuller appreciation of the risk that he or she in fact did. In this area, risks unknown to the claimant are at issue, but not risks which though unknown ought arguably to have been so.

Product liability Section 4 (1)(e): defence that ‘the state of scientific and

technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control’.

An escape route for the producer whose ignorance of the risk of injury was not culpable: so long as a fictitious producer of the same type of product could not have been expected to have known of the risk of injury, because either knowledge of such risk was not possible on account of the fact that the risk had not yet been discovered, or, if it had been discovered, because such risk had not been made public and was thus inaccessible to such a producer, then the producer will escape liability.

Product liability Conceivable application to new technology. Driver-less cars? Software? User-modified apps. US product liability law: Restatement (Third) Torts: Product

Liability volume (1998). Distinguishes three types of defect: (a) manufacturing defect,

(b) defect in design, (c) defective because of inadequate instructions or warnings.

(b) and (c) build in to their definition of defect the idea that the ‘foreseeable risks of harm posed by the product could have been reduced or avoided’ by alternative design/provision of instructions or warnings.

Remarks on Civilian and economic perspectives

Liability for harm caused by pharmaceutical products in German law.

Spanish law: development risks defence & food. German law: genetically modified organisms. Insurance, risk-spreading, and adventuring of new

activities. Spanish law and inmisiones. Cost-benefit analysis of liability for unknown risks.

Product Liability Commission v United Kingdom (1997): ‘in order for the

relevant scientific and technical knowledge to be successfully pleaded against the producer, that knowledge must have been accessible at the time when the product in question was put into circulation’.

Pharmaceutical products. A v National Blood Authority (2001): blood infected with the

hepatitis virus. State-of-the-art defence is not available to a producer whose

argument is that the risk of harm is unknown only in the sense that it does not know which of its products may be defective, rather than in the sense of an absence of knowledge that the risk of harm may exist in any products of the type in question.

Product liability So, if a risk of caused by design or inadequate instruction/

warning could not have been known by a reasonable party in the position of the defendant, the product will not be defective and liability will not arise.

Contrast with the UK (and EU) regime: under the approach in the Restatement, it is in the definitions of two out of three separately described types of defect that a knowledge based limitation on the otherwise strict liability is found; in the UK Act, no such limitation is built into the unitary definition of defect, rather a more restricted knowledge-based limitation is created under the state-of-the-art defence.

Opinion is divided on (1) whether the US approach of separating out 3 types of defect is better, and on (2) whether the issue of unforeseeable risk should be built into the definition of defect (the US approach) or into a defence made available to producers (the UK/EU approach).


Outline Introduction Structure of German Liability Law Fault-based Liability

▫ General Remarks ▫ Perceptibility and Preventability ▫ Emerging Risks

Strict Liability ▫ Limitations of Strict Liability ▫ Development Risks ▫ The Medicinal Products Act

Replacement of Individual Liability by Insurance Insurability of Unknown Risks in Liability Insurance Conclusion

The Structure of German Liability Law

Co-existence of fault-based and strict liability

Fault-based liability as basic principle of German liability law

Strict liability ‘principle of enumeration’

Fault-based Liability (1) – General Remarks

1. Sec. 823 (1) Civil Code ▫ Negligence only requires that a reasonable man could have

foreseen the violation of the protected right ▫ With regard to the consequential losses, the perceptibility by

an ideal observer is sufficient 2. Perceptibility and preventability of the harmful

event ▫ What measures can be expected by the defendant to perceive

the risk and to prevent the harmful event? standard of reasonableness

▫ Correlation between perceptibility and preventability: (‘Gefahr erkannt, Gefahr gebannt”’or ‘a danger foreseen is half avoided’ )

Fault-based Liability (2) – Emerging Risks

Leading question: When can a risk be considered foreseeable?

Is it sufficient that there are indications for an abstract risk? Do there have to be indications for a concrete (specific) risk? What measures can be expected to analyse and assess the risks?

Examples:

What standards of care have to be observed with regard to:

Nanotechnology Driverless cars

Introduction

Unknown risks – conceivable standards of knowledge Ex ante or ex post facto perspective? Standard of knowledge from an ex ante perspective

▫ Reasonable man in the defendant’s shoes (corresponds to the standard of care as defined in Sec. 276 (2) Civil Code)

▫ Perspective of an ideal observer in the light of current knowledge Absolute limit of fault-based liability (Adäquanztheorie) To what extent can strict liability be considered if even an ideal

observer would not have foreseen the harmful event?

Introduction Unknown risks as downside of technical or medical progress

Prominent examples ▫ Contergan case

(→ Adoption of Sec. 84 ff. Medicinal Products Act) ▫ Diseases resulting from asbestos ▫ Nanotechnology ▫ Driverless cars

Emerging risks (‘known unknown risks’): ▫ From an ex ante perspective, ▫ there might be unknown risks ▫ There is no certain ex post facto perspective, because no harmful

event has occurred yet

Dirk LOOSCHELDERS

Liability for Unknown Risks in German Law

Conclusions Environmental damage: tort law can’t fix environment-wide harm.

Also challenge of demonstrating a causal connection between an individual tortfeasor and individual victim.

Outside the environmental sphere, harmful conduct tends to have a targeted effect, impacting negatively on specific persons or property. Here it is tort which most obviously fits the bill.

Tort and unknowable risk? If fault-based liability should be general, default basis of tort law, we must accept that liability for unknowable risk will be excluded:

Concept of fault suggests that the reasonable person in the defendant’s shoes should have behaved differently. This cannot be expected if the risk of a specific type of injury was unknowable.

Strict liability allows for imposition of liability for unknowable risks, though in the most common example (liability for defective products) a defence of development risk for some actors effectively shifts liability back towards a fault basis.

Availability of this defence is not uniform across systems: e.g. in Germany it is not available for developers of pharmaceutical products, whereas it is in the UK.

Economic arguments don’t of themselves furnish the obviously correct answer to the question of the extent to which this defence should be available, or to other questions surrounding unknowable risks: the policy arguments stretch beyond the economic.

The issue of unknowable risks is relevant to the position of the defendant in a tort action, and (to the extent that contributorily liability is pled) to the claimant too.

But it is not applicable in relation to volenti non fit injuria. In assessing whether this defence applies, a court is concerned only with what a claimant actually knew about the risk of harm and not what a reasonable person in his or her shoes ought to have known.

See Martin A HOGG’s CV on page 36


Pedro del OLMO

Unknown Risks and Civil Liability in Spain, with some French-Italian Comparative Remarks

See Dirk LOOSCHELDERS’ CV on page 38

Strict Liability

1. General limitations of strict liability under German Law No general clause on strict liability (‘principle of

enumeration’ ) Implementation of strict liability clauses by the legislator

usually only after a harmful event has occurred 2. The development risk defence

Standard: General state of scientific and technical knowledge at the time the product was marketed

Is the opinion of a single expert sufficient?

Strict Liability

3. Liability pursuant to the Medicinal Products Act No development risk defence Problem: Burden of proof for the causal link between the

damage and the administration of the medicinal product (see Sec. 84 subsec. 2 Medicinal Products Act)

4. Liability pursuant to the Genetic Engineering Act

No development risk defence No force majeure defence Presumption of causation

Replacement of Individual Liability by Insurance

1. Statutory Insurance for Work Accidents and Occupational Illnesses

Duty of the social insurance carrier to pay for damages caused by job-related contacts with asbestos

Regardless of the responsibility of the employer

No compensation for non-pecuniary losses

Problem: Proof of causation between illness and occupational contacts with asbestos

2. Insurance for the Benefit of Test Persons Taking Part in Clinical Trials

The test person is entitled to insurance benefits regardless of whether someone is liable for the damage

Special form of private accident insurance

No compensation for non-pecuniary losses

Conclusion

Fault-based liability is not per se unsuited to provide liability for unknown risks. The liability depends on what measures the defendant is expected to take in order to assess the risks.

Strict liability generally does not exceed fault-based liability with regard to unknown risks. Exceptions: liability for medicinal products and genetically modified organisms.

Coverage of the damage by statutory or private accident insurance (e. g. occupational illnesses, clinical trials)

Coverage of liability for unknown risks by liability insurance

Insurability of Unknown Risks in Liability Insurance

Liability insurance generally also covers unknown risks Certain risks may be excluded in the General Policy

Conditions. Example: Damage caused by asbestos Mechanisms to limit the risk of the insurer

▫ Maximum amount of compensation in most cases of strict liability ▫ Maximum insured sums ▫ Co-insurance ▫ Reinsurance

Insurance enables the individuals to take risks they could not bear without insurance cover

The Spanish legal system does not provide us with a straightforward answer to the question about liability for unknown risks What is more, in Spain that question is not even iden-tified as a problem in itself Probably that has something to do with the fact that the con-cept of development risk is a newcomer to what can be called a Romanist system On the other

hand, it must be pointed out that the Spanish system of non-contractual liability is current-ly moving backwards from where it had come under the influence of the pro-damnato move-ment beginning in the 1960s that marked the evolution of case law until very recently There-fore, it has been said that case law is turning back to a strict understanding of fault That


means that the situation is unstable and not easy to describe accurately

Thinking about unknown risks, there are some points that can be made from the point of view of the general rules: (a) As foreseeability is a re-quirement of fault, fault-based liability cannot be imposed for harm caused by unknown risks; (b) When the risk is already known but it is not possible to avoid or to perfectly control it, fault liability can be imposed if there are some pre-cautions that could have been adopted in order to minimize it; (c) The defendant can be held liable for damage caused by unknown risks un-der a rule of strict liability, at least if one takes into account that those unknown risks can be perfectly held within the idea of causa ignota (unknown cause); (d) In cases of scientific un-certainty about causation, the distribution of the burden of proof is conclusive to determine the final outcome of the case, as the plaintiff will not be able to prove fault or causation and the defendant, by his part, will not be able to prove or even to identify the event that interrupted the link of causation between harm and his act or activity

The Spanish non-contractual liability system is based on a general rule of fault liability (art 1902), but the Civil Code also includes some other rules that go beyond fault-based liabil-ity Namely, cases of liability for other per-sons, liability for animals, liability for ruined buildings, liability for things that fell out from a building and liability in some scenarios re-lated to the harm suffered by neighbouring properties (arts 1903-1910) In Spanish legal doctrine, there is a debate about which cases are true cases of strict liability and which are cases of just presumed fault In Italy, facing a similar problem, the convenient name of aggravated liability has been used to encom-pass all the cases contained in the 1942 Civil Code which are not based in proven fault

Back to Spain… it has been pointed out that during the third quarter of the 20th centu-ry the concept of fault was so broadly under-stood by the Supreme Court that it became unnecessary to invoke arts 1905 et seq of the Civil Code Such a broad understanding of fault almost amounts to a strict liability rule and, therefore, it could impose liability for unknown risks upon defendants But, on the other hand, if we are speaking of unknown risks that turn into well known risks when the plaintiff sues the defendant, i e what in the context of defective products is called ‘de-velopment risks’, the foundations of the Span-ish system of non-contractual liability does not seem to be firm In effect, it is just impossible to presume fault if the defendant shows that he or she (as every other human being in the entire world) was absolutely unable to foresee the risk because science was unable to predict the outcome when he or she acted or initiated his or her activities

Under the Code Napoléon, as is well known, the French courts construed a rule of liability for things under custody that has been under-stood by legal writers as a rule of strict liabil-ity or as a rule of presumed fault for defective custody That French idea of liability for things under custody was openly adopted in art 2051 of the Italian Code of 1942 Additionally, the Italian Civil Code also contains a general rule of liability for dangerous activities (art 2050) In Italy, there has also been a debate about the true nature of the liability stemming from those two rules In any case, facing the problem of the meaning of the development risks with-in the general rules of non-contractual liability in their respective legal systems, it seems that French and Italian judges and legal writers will have more place for manoeuvring than their Spanish partners if they decide to uphold their traditional victim’s friendly atmosphere

See Pedro del OLMO’s CV on page 39


Michael FAURE, Louis VISSCHER and Franziska WEBER

Liability for Unknown Risks: A Law and Economics Perspective

Liability for unknown risks is a challenging topic, not only for legal scholars but also with-in law and economics The reason is, in es-sence, simple: a lack of information about the risks involved The law and economics of tort law centres on the incentives that tort law can provide to the various actors in order to take better decisions regarding their level of care and level of activity, and in order to reach a desirable risk distribution However, how does liability for risks which are not known at the time of acting affect the behaviour of the par-ties involved? Can liability for such unknown risks give better incentives for optimal be-haviour, or will it by definition lead to excessive care and a too low activity level? In the analysis two contingencies of “unknown risks” will be discussed – those not known according to the state of the art and those despite being part of the state of the art not known to the individ-ual tortfeasor Different liability regimes will be assessed with a view to their potential to induce operators to obtain information about risks and to trigger innovation This section will show that there are several effects that can be distinguished, and that trade-offs between these effects are unavoidable It turns out not to be possible to give a definite answer whether liability for unknown risks is desirable or not desirable; it depends on the situation What is possible in our view is to make generalised

remarks on this trade-off, which enables a dis-tinction between types of cases

When analysing liability for unknown risks from an economic perspective, it will become apparent that in a sense we are approaching the boundaries of what tort law can accomplish This opens a subsequent important question: should unknown risks be dealt with via tort law in the first place, or is public regulation better suited to deal with this challenge? The law and economics literature, more specifically literature on the topic of optimal enforcement, compares and contrasts tort law and regula-tion as two ways to deal with ‘negative exter-nalities’ Regarding the topic of unknown risks, it is an important question whether tort law or regulation can better steer the behaviour of the parties involved in the desirable direction Issues such as the available information (for regulation the information of the legislator, for tort liability the information of plaintiffs, defendants and courts), issues of enforcement (public versus private) and the influence of in-terest groups are relevant here Lastly, unknown risks may also pose serious problems for insurers as knowledge concerning risks is usually considered a primary condition for insurability However, tort law, regulation and insurance are bound to interact

See Franziska WEBER’s CV on page 43

32 Curricula Vitæ 15th Annual Conference on European Tort Law 33

Curricula Vitæ

Christian Alunaru is an Associate Professor and Dean of the Fac-ulty of Law, Western University ‘Vasile Goldis’, Arad, Romania He is also a practising barrister, Dean of the Arad Bar Associa-tion and a member of the UNBR Council (Romanian National Union of Bar Associations) Since 2011 he has been a fellow of the European Centre of Tort and Insurance Law (ECTIL) and a member of the ELI Council (European Law Institute) He has a PhD in civil law from ‘Babes-Bolyai’ University, Cluj, Romania In 1998, he was awarded a scholarship to study at the University of Freiburg, Germany He has published papers on property law, tort law, contract law and other aspects of civil law in journals and edited collections in Romania and several other countries (including articles on the influence of the Austrian Civil Code (ABGB) on civil law in Romania) He is also the author of a book on foreigners’ rights concerning real property in Romania In 2013 he published a book about the new sales law in Romania at the Nomos publishing house He is a member of the German Jurists’ Forum and also of the Austrian Jurists’ Forum In 2010 and 2013 he was visiting professor at the University of Econom-ics, Vienna He has been a participant at ECTIL conferences since 2004

Håkan Andersson is a Professor of Private Law at Uppsala Univer-sity After graduating (LLD, Dr juris) in 1993 on a thesis in tort law (Purpose of Protection and Adequacy On the Limits of Li-ability in Tort Law) he has developed his interest in the construc-tive use of newer philosophy in the field of private law, especially tort law His research project ‘Transformation of the Legal Ar-gumentation in Late Modernism’ is developing discourse theory and philosophy of language in direct contact with private law Beside the thesis, he has also written a monograph on Third Par-ty Losses (1997) In 2016 the third volume of his trilogy of books ‘Tort Law Developments’ (2,000 pages) will be published (the first two volumes, ‘Liability Issues’ and ‘Border Issues’ were pub-lished 2012–13); with these books the author performs a variety of close readings of case law in order to investigate distinctions and differentiations in the pluralistic discourse (All the men-tioned five books are written in Swedish ) He has written more than 200 opuses An up-to-date list of works (opus) is available at http://www jur uu se/AboutFacultyofLaw/Personal/Presenta-tion/tabid/5384/language/en-US/Default aspx?UserId=642

Ewa Bagińska (Prof Dr hab) holds the Chair of Civil Law at the School of Law and Administration of the University of Gdańsk She was a Fulbright Visiting Scholar (1998/1999) and NATO Science Fellowship grantee (2000/2001) at the CUA Columbus School of Law, Washington, DC She has authored a few books on product liability, public liability and medical law, as well as over 140 other contributions in the area of civil law Her recent book is entitled ‘Tort liability under uncertainty and complex-ity of causation A comparative law study’ [in Polish] (2013) She is the editor of ‘Damages for Violations of Human Rights

Christian ALUNARU

Western University ‘Vasile Goldis’ AradFaculty of LawBdul Revolutiei, 94–96310025 Arad RomaniaTel/Fax: (+40) 257 210171christian alunaru@gmail com

Håkan ANDERSSON

Uppsala UniversityFaculty of LawP O Box 512SE-751 20 UppsalaSwedenTel: (+46) 18 471 2001hakan andersson@jur uu se

Ewa BAGIŃSKA

Faculty of Law andAdministrationGdańsk UniversityJana Bażyńskiego 680–952 Gdańsk,PolandTel: (+48) 606 961 601or (+48) 58 523 2851


A Comparative Study of Domestic Legal Systems’, Springer Ver-lag (2016) Ewa Bagińska was a member of the Commission for the Codification of Civil Law She is a member of the European Group on Tort Law, the International Academy of Comparative Law and the ELI (European Law Institute) She is also a member of the advisory boards of the European Review of Private Law and Wiadomosci Ubezpieczeniowe

Marko Baretić is an Associate Professor of Civil Law and Con-sumer Protection Law at the Faculty of Law of the University of Zagreb He obtained his LLM (Pre-Contractual Liability) and PhD (Liability for Defective Products) degrees from the Univer-sity of Zagreb He also studied at the Asser College Europe, Asser Institute, The Hague, The Netherlands He publishes on various topics in the fields of civil law, predominantly the law of obliga-tions (contract law and tort law) and consumer protection law He was active in negotiations of the Republic of Croatia for the accession to the EU as a member of the working group 28 (con-sumer protection and health) As a member of various legislative working groups, he actively participated in drafting the Croatian Obligations Act and the Consumer Protection Act He is the rep-resentative of the Republic of Croatia in the working group III of UNCITRAL (online dispute resolution) He is also active in com-mercial arbitration

Elena Bargelli is currently a Full Professor of Private Law at the University of Pisa and Vice-Director of the Department of Po-litical Science She was a Research Fellow of the Alexander von Humboldt Stiftung at the Max Planck Institut für ausländis-ches und internationales Privatrecht in Hamburg (2008–2009), visiting fellow at the Institute of Advanced Legal Studies, Lon-don (2011/2012) and at the Yale Law School, New Haven, USA (2007) She is currently a member of the ELI (European Law In-stitute) Council and Membership Committe Her areas of inter-est are contract law, tort law, family law, comparative law, and European law

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 Mas-ter’s degree in law in 1995 As well as practising as an attorney-at-law, he continues his academic studies at the University of Latvia for a doctorate degree He also lectures at the Civil Law Depart-ment, Faculty of Law, University of Latvia His area of expertise is the law of obligations, with a focus on contract law and civil liability, tort law, intellectual property law and Roman law He is a co-author of the commentaries on the Latvian Civil Code and co-author of the commentaries on Section 8 of the Latvian Constitution He is the author of the book ‘Civil liability and its kinds’ (Civiltiesiska atbildiba un tas veidi) and of many articles relating to law issues He is a member of the Latvian Bar, Interna-tional Bar Association and AIPPI (International Association for the Protection of Industrial Property) From 2008 till 2014 Agris Bitāns has been the Council’s member of the Latvian Bar and since 2005 he has been the President of AIPPI Latvian National Group Since his admittance to the Latvian Bar in 1998, he has been practising mostly in civil (contracts and tort), intellectual

Fax: (+48) 58 523 27 41baginska@fulbrightmail org

Marko BARETIĆ

Faculty of Law of the University of ZagrebTrg maršala Tita 310000 ZagrebCroatiaTel: (+38) 5 1 4597 561Fax: (+38) 5 1 4597 521mbaretic@pravo hr

Elena BARGELLI

Faculty of Political SciencePisa UniversityVia Serafini, 356126 PisaItalyTel: (+39) 50 2212458Fax: (+39) 50 2212470bargelli@sp unipi it

Agris BITĀNS

University of LatviaLecturer at Faculty of LawRaina bulvaris 19RigaLatvia, LV 1586Tel: (+371) 67280102Fax: (+371) 67504566agris bitans@eversheds lv


property, commercial and administrative matters He is manag-ing partner of the Law Firm ‘Eversheds Bitāns’ His fields of legal research include contract and tort law, personality law, medical law and media law He is also a regular participant at interna-tional conferences and workshops dealing with intellectual prop-erty law, civil law, litigation and arbitration

Andreas Ehlers is associate professor of tort law at the University of Copenhagen Andreas obtained his Master’s degree from the University of Copenhagen in 2004 and subsequently he worked for the law firm ‘Kromann Reumert’ in Copenhagen In 2006 he was awarded the Sir Gerrard Brennan Scholarship at the Univer-sity of Queensland (Australia) from where he obtained an LLM degree in 2007 In 2011 Andreas published his PhD thesis which deals with the doctrine of adequacy in tort law Andreas is cur-rently working on a book project on causation and personal in-jury

Giannino Caruana Demajo was born in Malta in 1958 He grad-uated in law (LLD) from the University of Malta in 1982 and was awarded a warrant to practise as Advocate in the Superior Courts in April of that year, after which he exercised the profession in private practice until 1994 He was appointed lecturer in Civil Law at the University of Malta in 1989 and Head of the Depart-ment of Civil Law in 1993 Between 1992 and 1994 he also served as Chairman of the Board of a commercial reinsurance company In 1997 he was appointed Chairman of the Committee of Experts on Efficiency of Justice of the Council of Europe, a post he held until 1999, during which time he also served on the Committee of Experts advising on the drafting of the Enforcement Code of Bosnia-Herzegovina, the Code of Procedure of Moldova and the Civil Code of the Ukraine In December 1994 he was appointed Judge of the Superior Courts, where he is Senior Administra-tive Judge since 2007 and Vice-Chairman of the Judicial Studies Board since 2009

Dr Eugenia Dacoronia is Professor of Civil Law at the National and Kapodistrian University of Athens Law Faculty, from where she graduated and received her doctorate with excellence She has attended several courses abroad (Amsterdam, King’s College London, Tulane University) Since her admittance to the Athens Bar in 1981, she has been practising mostly in civil (contracts and real property), intellectual property, commercial and admin-istrative matters She has participated as an arbitrator or umpire at national and international arbitrations She is also a Europe-an Patent Attorney She teaches, among other subjects, General Principles of Civil Law, Real Property Law, Environmental Law, Torts in the Legal System of the USA She is the author of three books (in Greek) ‘Sublease of Movables’, ‘The Issue of Construc-tion of Wills under Greek Law’, ‘Catastrophic Harms and Sys-tems of Indemnification’ and she has published various articles and notes on court decisions (in Greek, English and French) She has taken part in international congresses as a national repre-sentative and has participated in the Trento/Torino Common Core project as well as in the Study Group on a European Civil Code She is a member of the Central Codification Committee of

Andreas BLOCH EHLERS

Copenhagen UniversityStudiegaarden Studiestraede 61455 CopenhagenDenmarkTel: (+45) 353 23103andreas ehlers@jur ku dk

Giannino CARUANA DEMAJO

Judges’ ChambersCourts of JusticeRepublic StreetValletta VLT 2000MaltaTel: (+35) 6 2590 2281Fax: (+35) 6 2124 2087giannino caruanademajo@gov mt

Eugenia G DACORONIA

Attorney-at-LawAssociate Professor of Civil LawAthens University Law Faculty18, Valaoritou StGR-10671 AthensGreeceTel: (+30) 210 2010011Fax: (+30) 210 3639601dacoronia@yahoo com


the Greek Parliament, a member of the European Group on Tort Law and has served as Chairperson of the Supervisory Board of the Greek Independent Power Transmission Operator

Gregor Dugar is an assistant professor at the Faculty of Law, University of Ljubljana He studied in Ljubljana and obtained his Doctorate in Law (LLD) in 2013 with a degree thesis on the top-ic ‘Company as a common property of spouses’ He teaches and writes in the area of civil law and commercial law, especially in the areas of tort law and business contract law

After graduating in law in 1985, Anton Dulak started to work at the Department of Civil Law at Comenius University, Bratislava as an assistant In 2001 he obtained his PhD degree In 2003, An-ton Dulak habilitated with a thesis on Product Liability Law and was promoted to an associate professor He has attended courses at Cambridge University, the University of Oslo and University Louvain la Neuve He is a member of the Slovak Bar Associa-tion In 2013 he was appointed Dean of the Law Faculty College Danubius From 2007 he has been a member of the Ministry of Justice Recodification Commission for a new Civil Code In Janu-ary 2013 he was appointed the Chairman of this Commission

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 obtained her PhD degree in law in 2003 at this university and is currently Professor at the Depart-ment of Private Law She teaches real property law, security law and contract law Her main fields of research are tort, contract and real property She has also contributed to several research projects for the Austrian Academy of Sciences’ Institute for Euro-pean Tort Law and for the European Centre of Tort and Insurance Law (ECTIL) in Vienna where she was on leave for work from October 2004 to March 2005 She is a member of ECTIL and is a guest of the European Group on Tort Law (EGTL) In addition, she was an attorney at the Brussels Bar from 1991 until 2004

Dr iur Jörg Fedtke joined the University of Hamburg in 2001 as a researcher at the Seminar für ausländisches und internationales Privat- und Prozessrecht He moved to University College Lon-don in 2002, where he held the Chair for Comparative Law and the Directorship of the Institute of Global Law until 2008 He was also a Visiting Professor at the University of Texas at Austin between 2003 and 2008 Jörg Fedtke is now A N Yiannopoulos Professor in Comparative and International Law and Co-Director of the Eason-Weinmann Center for Comparative Law at Tulane University He also holds the new Chair for Common Law at the University of Passau in Germany Jörg Fedtke teaches and pub-lishes in the areas of tort law, constitutional law, comparative methodology, and European Union law He is a fellow of the Eu-ropean Centre of Tort and Insurance Law (ECTIL) in Vienna

Gregor DUGAR

University of LjubljanaFaculty of LawPoljanski nasip 2SI – 1000 LjubljanaSloveniaTel: (+386) 1 42 03 132Fax: (+386) 1 42 03 115gregor dugar@pf uni-lj si

Anton DULAK

Law Faculty College DanubiusRicherova 1171952 21 SládkovičovoSlovakiaTel/Fax: (+421) 3717732841dulak@sba sk

Isabelle C DURANT

Université catholique de LouvainFaculté de droit et de criminologiePlace Montesquieu 2 bte L2 O7 O1B-1348 Louvain-la-NeuveBelgiumTel: (+32) 10 47 47 41Fax: (+32) 10 47 47 32isabelle durant@uclouvain be

Jörg FEDTKE

Tulane University School of LawJohn Giffen Weinmann Hall6329 Freret StreetNew Orleans, LA 70118United StatesTel: (+1) 504 865 5977 and(+1) 504 616 9555jfedtke@tulane edu

Lehrstuhl für Common LawJuristische FakultätUniversität Passau94030 Passau Tel: (+49) 851 5093470joerg fedtke@uni-passau de


Monika Hinteregger is based in Graz, Austria In October 1994 she was appointed Professor of Civil Law at the Department of Civil Law, Foreign Private and Private International Law of the Karl Franzens University Graz From November 2003 until Oc-tober 2013 she was President of the Senate of the Karl Franzens University Graz and from 2009 to 2013 Director of the Depart-ment Her research activities focus on European and Austrian tort law, property law and family law During her career she served several times as visiting professor at other universities in Europe (Hungary, Italy), USA (Rutgers Law School, Camden, New Jer-sey) and Asia (University of Malaya in Kuala Lumpur, Malaysia) and as legal advisor to the Austrian government concerning the drafting of legislation in the field of environmental and nuclear liability law as well as general tort law She is a board member of the Austrian Lawyers Association (Österreichischer Juristentag) and the European Centre of Tort and Insurance Law Since 2012 she has been Director of the Centre of European Private Law and since 2015 Director of the Department of Civil Law, Foreign Pri-vate und Private International Law of the Karl Franzens Univer-sity Graz

Martin Hogg is Professor of the Law of Obligations at the Uni-versity of Edinburgh He has written and published extensively in the obligations field since 1992, both from a national and com-parative legal perspective He is a contributor to the Digest of Eu-ropean Tort Law, as well as the European Tort Law Yearbook, and is a Member of the European Centre of Tort and Insurance Law (ECTIL) He is the Editor of the Edinburgh Law Review

Jiří Hrádek is a researcher at the Centre of Comparative Law at the Faculty of Law of Charles University and an attorney-at-law at the Law office of Schönherr in Prague He graduated in law from the Faculty of Law of Charles University (2002) Jiří Hrádek studied at the University of Hamburg (2000-2001), in the LLM programme at the Eberhard-Karls-University in Tübingen (2002-2003) and in the post-graduate programme of the Charles Uni-versity (2002-2009) In 2002 and 2003 he completed research stays at the European Centre of Tort and Insurance Law (ECTIL) in Vienna; in 2007 he received an internship at the European Commission, DG Health and Consumer Protection Jiří Hrádek is a member of the editorial board of the Czech journal Jurispru-dence He specialises in civil and procedural law, with a special focus on tort law He is the author of a book on pre-contractual liability and he regularly publishes articles in Czech and foreign legal journals

Anne Keirse is a Professor of Private Law at the University of Utrecht and head of the Molengraaff Institute for Private Law She is affiliated with the Utrecht Centre for Accountability and Liability Law (UCALL) and the Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE) Born in 1975, she studied Law at the University of Groningen (1993–1997), where she also obtained her doctorate and became a (senior) lecturer (1997–

Monika HINTEREGGER

Department of Civil Law, Foreign Private and Private International LawKarl Franzens University GrazUniversitätsstraße 15 Bauteil D/ IV8010 GrazAustriaTel: (+43-316) 380 3322monika hinteregger@uni-graz at

Martin A HOGG

School of LawUniversity of EdinburghOld CollegeSouth BridgeEdinburgh EH8 9YLUnited KingdomTel: (+44) 131 650 2071Fax: (+44) 131 650 2005martin hogg@ed ac uk

Jiří HRÁDEK

Charles UniversityFaculty of LawPragueNám Curieových 7110 00 PrahaCzech RepublicTel: (+420) 728 228224hradek@prf cuni cz

Anne LM KEIRSE

Molengraaff Institute for Private LawJanskerkhof 123512 BL UtrechtThe Netherlands


2006) Before becoming a Professor in Utrecht (2008), she was appointed senior lecturer at the Radboud University of Nijmegen (2006–2008) In 2013–2104 she was a visiting professor at the University of the Free State, Bloemfontein, South Africa Along-side her academic work, she has been engaged in part-time judi-cial work, first as a registrar at the District Court in Assen, subse-quently as a judge at the District Court in Groningen, thereafter as a judge at the Court of Appeal in Arnhem She presently works part-time as a judge at the Court of Appeal in Amsterdam She is a member of the European Group on Tort 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, LLM 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 the Euro-pean Centre of Tort and Insurance Law (ECTIL) and the Austrian Academy of Sciences, he returned to Innsbruck, where he holds a chair in civil law From 2004 to 2010, Bernhard A Koch was the Vice Director of the Austrian Academy of Sciences’ Institute for European Tort Law (ETL) He is the academic director of the Uni-versity of Innsbruck medical law programme Bernhard A Koch’s main fields of research are tort, contract, real property and fam-ily law He is a member of the European Group on Tort Law

Georg E Kodek studied law at the University of Vienna and at Northwestern University School of Law In 1991, he was appoint-ed a district court judge in Vienna After serving at the superior court of Eisenstadt and the Vienna Court of Appeals, in 2006 he was appointed to the Austrian Supreme Court In addition, he is professor of civil and commercial law at the Vienna University of Economics and Business He has published extensively in the fields of civil and commercial law and civil procedure law

Päivi Korpisaari is Professor in Communication Law at the Fac-ulty of Law, University of Helsinki Before her career at the uni-versity she worked (1993-2003) as a lawyer at a law firm, as a legal trainee at the District Court of Riihimäki, as a presenting officer at the Court of Appeal of Helsinki and as a legal counsel at the Finnish Soil Mechanics Association Korpisaari has worked at the university since 2003 and published many books and articles in the fields of media and communication law, information law, tort law, criminal law and constitutional law Her main fields of research are media and communication law, tort law, personal data protection, constitutional law, human rights law, and crimi-nal law in respect of ‘freedom of expression offences’ She has been a national expert in studies in the field of media and com-munications and she is a leader of two research projects relating to personal data protection

Tel: (+31) 30 253 7192Fax: (+31) 30 253 7203a l m keirse@uu nl

Bernhard A KOCH

University of InnsbruckInnrain 526020 InnsbruckAustriaTel: (+43) 512 507-8110Fax: (+43) 512 507-9885bernhard a koch@uibk ac at<www zivilrechts info>

Georg E KODEK

Vienna University of Economics and BusinessInstitut für Zivil- und UnternehmensrechtGebäude D 3, 1 OGWelthandelsplatz 11020 ViennaAustriaTel: (+43) 1 31336 4650Fax: (+43) 1 31336 714georg kodek@wu ac at<www wu ac at/privatrecht>

Päivi KORPISAARI

Professor in Communication LawUniversity of HelsinkiPO Box 4 (Yliopistonkatu 3)FI – 00014 University of HelsinkiFinlandpaivi korpisaari@helsinki fi


Irene Kull is a Professor of Civil Law and holds the position of the head of the Private Law Department of the Tartu University Law School She participated in the Study Group on a European Civil Code as an advisor on the Working Teams and from 2010 she has been a member of the Expert Group on a Common Frame of Ref-erence in the area of European contract law She lectures on con-tract law, law of obligations and European contract and commer-cial law She is a member of the group of authors of comments on Estonian Civil Code Acts (Law of Obligations Act, General Part of Civil Code Act) Her main interests include the general princi-ples of contract and tort law, harmonisation of European private law and comparative contract law She is an advisor on the civil chamber of the Estonian Supreme Court

Dirk Looschelders has been a Professor at the University of Dues-seldorf since 1999 He studied law at the University of Mann-heim, where he also obtained his doctor’s degree in 1995 In 1998 he was awarded a post-doctorate degree with a thesis on con-tributory negligence Since 2006 Dirk Looschelders has also been a Director to the Institute for Insurance Law at the University of Duesseldorf From 2008 to 2010 he was Dean of the Law Faculty in Duesseldorf In 2011, he became a member of the Ethics Com-mittee of the Medical Association North Rhine Westphalia His main fields of research are contract and tort law, insurance law, private international law and comparative law

Peter Loser, born in 1964, is Professor at the University of Ba-sel (Titularprofessor for Private, Commercial and Compara-tive Law), where he habilitated in 2006 with a comprehensive work on ‘liability based on reliance’, after studies in St Gallen and Lausanne, Switzerland (University of St Gallen HSG, lic iur 1990; Dr iur summa cum laude 1994) He was a visiting scholar at Yale University in 1992/93 and did research at the UNIDROIT in Rome and at the University of Oxford Currently Peter Loser teaches private, tort and banking law at the Universities of Basel and St Gallen HSG He is a Fellow of the European Law Institute (ELI, Brussels) and of the European Centre of Tort and Insurance Law (ECTIL, Vienna) and an active participant of the project ‘The Common Core of European Private Law’ (University of Trento, Italy) From 2006 to 2009 he was a member of the Board of the Swiss Lawyers Association Peter Loser has worked as a lawyer since 1995 and is Member of Senior Management of a bank in Switzerland

Attila Menyhárd was born in 1968 He works at the University of Eotvos Lorand, Faculty of Law, Civil Law Department (Budapest) and he is also a practising lawyer He earned his PhD degree in 2003 at the ELTE Law Faculty, Budapest with a thesis on immoral contracts He habilitated in 2007 with his book on property law and his thesis on human rights in private law He has been a full professor since 2012 He is the author of four books and more than one hundred other publications in tort law, contract law, property law, company law, law and economics and human rights in private law in Hungarian, English and German, in Hungary as well as abroad His special research fields are: contract law, tort

Irene KULL

University of TartuFaculty of LawNaituse 2050416 TartuEstoniaTel: (+37) 2 7 375 060Fax: (+37) 2 7 376 060irene kull@ut ee

Dirk LOOSCHELDERS

Heinrich Heine Uni-versity DüsseldorfUniversitätsstr 1Gebäude 24 81, Raum 01 46D – 40225 DüsseldorfTel : +49 (0) 211 - 81 11451Fax: +49 (0) 211 - 81 11452LS Looschelders@hhu de

Peter LOSER

University of BaselSt Galler Kantonalbank AGLegal & ComplianceSt Leonhardstrasse 259000 St GallenSwitzerlandTel: (+41) 71 231 3131peter loser@sgkb ch

Attila MENYHÁRD

ELTE Faculty of LawCivil Law DepartmentEgyetem ter 1-3H-1364 BudapestHungaryTel: (+36) 1 411 6510menyhard@ajk elte hu


law and property law, company law, commercial law, law and economics, law and literature and human rights in private law as well as international commercial contracts, European business law and European company law Upon the invitation of the Min-istry of Justice, he contributed to the project on a new Hungarian Civil Code being responsible for the provisions on property law and rent law He is a participant in several international research projects and programmes He is a registered member of the Ar-bitration Court of the Hungarian Chamber of Commerce and Industry, Budapest

Prior to joining Cardiff Law School as a lecturer in 2003, Annette Morris qualified as a barrister and worked as a policy research-er for the Association of Personal Injury Lawyers Her research, which focuses on various aspects of civil justice, draws on the practical experience she has gained to date She is best known for her work on the so-called ‘compensation culture’ in England and Wales She is the module leader for Tort and also teaches Legal Foundations She has previously taught both Legal Ethics and Commercial Legal Practice She is a member of the editorial board of the Journal of Law and Society and the Subject Sections Secretary of the Society of Legal Scholars She was previously the academic representative on the Civil Justice Council’s Personal Injury Committee; assistant editor of the Journal of Professional Negligence and the Convenor of the Society of Legal Scholars’ Tort subject section

Pedro del Olmo is currently an associate professor at Carlos III University at Madrid, where he is the director of the Tort Law Research Group He is a fellow of ECTIL, member of the ALI, member of the REDPEC (Spanish Network on European and Comparative Private Law) and fellow of the Institute of European and Comparative Private Law at the University of Girona He has been working on the law of obligations since 1998, focusing on the unilateral aspects of obligations (payment, subrogation), in contract law (economic duress) and in tort law (fault, pure eco-nomic loss, non-pecuniary loss, punitive damages, directors’ and officers’ liability) He is currently leading a research team work-ing on the law of unjust enrichment

Professor of Law at the University of Coimbra (Portugal), teach-ing Family Law, Law of Successions, General Theory of Civil Law, Tort Law, Medical Law and Pharmaceutical Law PhD in law (summa cum laude) with a thesis on Medical Liability and Pa-tients’ Rights, his academic career started with the graduation in Law at the University of Coimbra (awarded Prof Manuel de Andrade for best student [1992-1997]); attended courses in law in Göttingen (1996), Utrecht (1999) and Helsinki (2000); he has a post-graduate degree in Medical Law (1999) and a post-gradu-ate degree in Civil Law (2002), and defended his Master’s thesis: ‘Informed Consent in Patient-Doctor Relationship’ (2003 [400 pages]) His languages skills, besides his mother tongue (Portu-guese), include fluency in English, Spanish, German and French He is Director of the Centre for Biomedical Law, researcher at the University of Coimbra Institute for Legal Research, Mem-ber of the National Ethics Committee for Clinical Research and

Annette MORRIS

Cardiff Law SchoolCardiff UniversityMuseum AvenueCardiff, CF10 3AXUnited KingdomTel: (+44) 2920 874580MorrisA7@cardiff ac uk

Pedro del OLMO

Departamento de Derecho PrivadoUniversidad Carlos III de MadridC/ Madrid, 126 Getafe 28903Spain(34) 91 624 9535 (office)(34) 91 624 9511 (secretary)ped-ro delolmo@uc3m es

André DIAS PEREIRA

University of CoimbraFaculty of Law3004-545 CoimbraPortugalTel: (+35) 1 239 859802Fax: (+35) 1 239 821043andreper@fd uc pt


Eoin QUILL

University of LimerickSchool of LawLimerickIrelandTel: (+35) 3 61 20 2220Fax: (+35) 3 61 20 2682eoin quill@ul ie

Albert RUDA

University of GironaFacultat de DretCampus de Montilivi17071 GironaSpainTel: (+34) 972 41 97 68Fax: (+34) 972 418 121ruda@elaw udg edu

Loreta ŠALTINYTĖ

Institute of International andEuropean Union LawFaculty of LawMykolas Romeris UniversityAteities 2008303 VilniusLithuaniaTel: (+37) 5 271 4512Fax: (+37) 5 271 4561losal@mruni eu

Member of the National Council of Ethics for Life Sciences He is participates in other Ethics committees: Vice-President of the Institutional Review Board of AIBILI, Member of the Council of Bioethics of the Portuguese Society of Human Genetics, Mem-ber of the IBMC-INEB Animal Ethics Committee (Oporto) and Member of ORBEA - Animal Ethics Committee of the University of Coimbra At the international level, he is a Fellow of ECTIL (European Centre of Tort and Insurance Law, Vienna, Austria); invited Professor at the Summer School on European Private Law (Salzburg, Austria); invited Professor at the Summer School on Medical Law (Toulouse, France) and Treasurer and Member of the Executive Committee of the World Association for Medical Law and Program Chair of the 21st World Congress on Medical Law

Eoin Quill was born in Limerick in 1965 He studied law at Uni-versity College Cork, a constituent college of the National Uni-versity of Ireland, between 1982 and 1988 obtaining two bach-elors and a master’s 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 Torts in Ireland (Gill & Macmillan 1999, 4th edn 2014), Tort Law in Ireland (Kluwer 2015) and a variety of journal articles and chapters in edited books on issues in tort He is currently an ex-aminer in Tort for the Law Society of Ireland and a Member of the International Commercial & Economic Law Group, University of Limerick

Albert Ruda is Senior Lecturer in Private Law at the University of Girona He is Deputy Dean at the Faculty of Law and a mem-ber of the Institute of European and Comparative Private Law of the same University, fellow of the European Centre of Tort and Insurance Law (ECTIL, Vienna) and the Utrecht Centre for Accountability and Liability Law (UCALL, Universiteit Utrecht), member of the Spanish Network on European and Comparative Private Law (REDPEC), and elected member of the Council of the European Law Institute (ELI) He has authored or co-authored more than 60 works mainly in the fields of tort law, contract law or property law

Loreta Šaltinytė is currently an Associate Professor of EU law at Mykolas Romeris University in Vilnius She holds a doctor’s degree from Mykolas Romeris University She also holds a mas-ter in law degree from Vilnius University (2002), an LLM from Riga Graduate School of Law (2003) and an LLM in natural re-sources law and policy (with distinction) from Dundee Univer-sity, CEPMLP (2008) She teaches courses in EU law, EU law and human rights, and EU energy law Her research interests also include international investment law and tort law


Born Berlin, 1948; Abitur at the Lilienthal Gymnasium, Berlin, 1968; legal studies and First State Exam, 1973; doctorate in law at the University of Frankfurt a M , 1976; Second State Exam, 1978; research assistant for Gerhard Dilcher at the University of Frank-furt a M , 1979-80; post-doctoral qualification sponsored by the Deutsche Forschungsgemeinschaft 1980-1982; qualification as professor at the University of Frankfurt a M , 1983; deputised as professor in Constance, Frankfurt, Regensburg and Trier 1984-1988; Professor for Civil Law, German and Modern European Legal History, University of Trier, 1989-1994; from 1994 Professor for German and European Civil Law and Director of the Institute for International Business Law, the Institute for Legal History, University of Münster; 1997-2012 Executive Director of the Cen-tre for European Private Law, Münster; honoris causa 1998 Co-editor of Zeitschrift für Europäisches Privatrecht (ZEuP); Zeitschrift für Neuere Rechtsgeschichte” (ZNR); Schrift-en zum Europäischen Privatrecht and Schriften zur Europäischen Rechts- und Verfassungsgeschichte; member of the Academy of European Private Law Scientists, Pavia; member of the Supervi-sory Board of the European Centre of Tort and Insurance Law, Vienna; judge at the Higher Regional Court, Hamm (1996-2005); council member of the European Law Institute (ELI); member of the Spanish Real Academia de Jurisprudencia y Legislación; mem-ber of the Italian Accademia Nazionale dei Lincei Currently Reiner Schulze is University Professor, Co-Di-rector of the Centre for European Private Law, Director of the Institute for International Business Law and Director of the In-stitute for Legal History

Michel Séjean is a Professor of Private Law at the University of Southern Brittany (Université de Bretagne-Sud), with full pro-fessorship (agrégé des Facultés de droit) Before his PhD in Pri-vate Law of Obligations, he graduated from Indiana University in Bloomington (School of Public and Environmental Affairs) and from the Higher Institute of Interpretation and Translation (Institut Supérieur d’Interprétation et de Traduction, Paris) He has practised professional legal translation for over ten years On the occasion of a six-month visit at Louisiana State University (2009), he translated into French the Principles of European Tort Law (O Moréteau (ed), Paris, 2011), and worked on the trans-lation into French of the Louisiana Civil Code, as well as the Draft Common Frame of Reference He is the Editor-in-Chief of the Henri Capitant Law Review (<http://henricapitantlawreview fr>), a leading bilingual Journal of French Civil Law in English and French He has also contributed to the latest 2015 update of the English version of the French Commercial Code

Catherine Sharkey is the Crystal Eastman Professor of Law at New York University and a Faculty Director of the Civil Jury Pro-ject at NYU She is one of the nation’s leading authorities on pu-nitive damages, federal preemption, and business torts She has published more than 40 articles, essays, and book chapters in the fields of torts, products liability, administrative law, remedies, and class actions Sharkey is co-author with Richard Epstein of Cases and Materials on Torts (11th ed, 2016) and co-editor with Saul Levmore of Foundations of Tort Law (2nd ed, 2009) She is

Reiner SCHULZE

Westfälische Wilhelms UniversitätCentre for European Private LawUniversitätsstraße 14–1648143 MünsterGermanyTelephone +49 251 83 22757Fax: +49 251 83 24753reiner schulze@uni-muenster de

Michel SÉJEAN

University of Southern BrittanyFaculty of LawCampus de TohannicBP 573F-56017 Vannes CedexFranceTel: (+33) 6 62 84 47 45michel sejean@univ-ubs fr

Catherine M SHARKEY

New York University School of Law40 Washington Square South, Rm 403New York, NY 10012Tel: +001 212 998-6729catherine sharkey@nyu edu


Jaap SPIER

Hoge Raad der Nederlanden 2582 RL Den Haag The Netherlands j spier@hogeraad nl

Barbara C STEININGER

Centre of European Private LawUniversity of GrazUniversitätsstraße 15 Bauteil D/IV8010 Graz, AustriaTel: (+43) 316 380 3585Fax: (+43) 316 380 9425barbara steininger@uni-graz at

Institute for European Tort LawReichsratsstraße 17/21010 ViennaAustria

Christian TAKOFF

University of SofiaZar Osvoboditel Blvd 151000 SofiaBulgariaTel: (+359) 889 292 006christian_takoff@yahoo com

a founding member of the World Tort Law Society, established in 2012, and an elected member of the American Law Institute Sharkey is an appointed public member of the Administrative Conference of the United States and an adviser to the ALI Re-statement Third, Torts: Liability for Economic Harm She was a 2011-12 Guggenheim Fellow

Graduated at Erasmus University (Rotterdam) 1973; Attorney at the Bar of Rotterdam until 1977; Lecturer of private law at Leyden University (1977–1981); Company lawyer, Unilever NV (1982–1989); Professor of private and commercial law, Tilburg University (1989–1999; after appointment in the Supreme Court part time); Advocate-General in the Supreme Court of The Neth-erlands (as from 1997); Honorary professor (em) Maastricht University (active from 1999–4 March 2016); PhD (Doctor iuris) Leyden University 1981 (topic: Overeenkomsten met de over-heid); Founder and honorary President of the European Group on Tort Law; Co-founder (with Prof Thomas Pogge) of an expert group working on climate change principles (this group issued the Oslo Principles; Spier served as rapporteur) and its successor, working on reduction obligations of enterprises; fellow of Stias (research institute attached to the University of Stellenbosch) for two subsequent years; Member of ECTIL (European Centre of Tort and Insurance Law, Vienna, Austria); Senior Global Justice fellow at Yale; author and (co-)editor of 25 books and hundreds of articles and case notes on tort law, insurance law and private law; since 2000 primarily on issues in the realm of sustainable development and climate change; Member of the IBA working group on a Model Statute on Climate Change Remedies

Barbara Steininger is Assistant Professor at the Institute for Eu-ropean Tort Law of the Austrian Academy of Sciences and the University of Graz (ETL) She studied Law and Netherlandistic Studies in Vienna and Leiden obtaining two Masters’ degrees from Vienna University, where she also worked as a student as-sistant at the Department of Roman Law and Antique Legal His-tory In 2005 she completed her Doctoral Thesis in Law at the same University Barbara Steininger has been employed at the European Centre of Tort and Insurance Law (ECTIL) in Vienna, the Département d‘histoire du droit et des doctrines juridiques et politiques, University of Geneva, and at ETL Since 2014 she has been teaching Law of Obligations and Property Law at the University of Graz Barbara Steininger is currently working on her habilitation She is a Member of ECTIL and a Fellow of the European Law Institute

Christian Takoff (1965) was born in Sofia, Bulgaria, where he enjoyed his legal education as well He acquired his Master’s de-gree in law at the University of Sofia (1992), his Legum magister degree (LLM) in Hamburg, Germany (1995) and his doctorate at the University of Sofia (1997) Christian Takoff was an Alexan-der von Humboldt Fellow in Hamburg (2004–2006) As of 1992 he is an assistant professor at the University of Sofia; since 1996 major assistant professor; since 1997 Christian Takoff holds ten-ure as main lecturer at the the Veliko Turnovo University (Bul-garia) in Civil Law as well and since 2009 (after habilitation)


he has held the chair for Family and Hereditary Law at the Law Faculty of the Sofia University His current field of interest covers the general part of civil law, law of contracts, hereditary law and comparative law He has written more than 20 publications and 3 monographs The most recent ‘Voluntary Representation’ dealswith the problems of agency in Bulgarian law from a comparative perspective, and the ‘Method for the Solving of Civil Cases’ with theoretical and practical issues of legal methodology Christian Takoff also works as a legal advisor and arbitrator at the Arbitra-tion Court of the Bulgarian Chamber of Commerce and Indus-try Christian Takoff participated in the Supervisory Board of the State Agency for Post-Privatisation Control (2000–2004) and atthe Legislative Council of the Bulgarian Parliament (2000–2001 and 2006–2008)

Knut Tande is an Associate Professor and Vice Dean at the Faculty of Law of the University of Bergen His main topics for teaching and research are copyright law, legal methodology and tort law For several years he has been a member of The National Commit-tee for Research Ethics in the Social Sciences and the Humanities (NESH)

Thomas Thiede studied Law, Economics and Political Sciences at the University of Greifswald, Germany where he obtained a Bachelor of Laws in 2003 and a Master of Laws (Comparative and EU Law) Following this and having taken a position as a scientific assistant at the Austrian Academy of Sciences’ Institute for European Tort Law in Vienna, he began his doctoral studies For his thesis he was awarded his doctorate with destinction as well as the 2011 Franz-Gschnitzer Award and promoted to a Jun-ior Scientist at the Austrian Academy of Sciences At the begin-ning of 2013 he joined the ranks of lecturers at the Institute for Civil law, Foreign and Private International Law of the University of Graz, Austria and holds courses and lectures on Comparative Law and Conflict of Laws Since December 2015 he has been undertaking judicial training at the Higher Regional Court of Dortmund, Germany

Since October 2013 Franziska Weber has been a Junior Professor for Civil Law and Law & Economics at the University of Hamburg, Germany and Research Fellow at the Erasmus University Rotter-dam, the Netherlands Prior to her appointment in Germany, she was a post-doc researcher at the Private Law Department, Erasmus University Rotterdam, within the BACT (Behavioural Approaches to Tort and Contract Law) research programme Her main fields of interest concern the law and economics of Ger-man and European consumer law enforcement She successfully defended her European Doctorate in Law and Economics (EDLE) PhD thesis regarding the optimal mix of public and private en-forcement in consumer law in 2012 at Erasmus University Rot-terdam (research visits within the EDLE-programme: University of Bologna (Oct 2009 - June 2010); University of Stockholm (Au-gust 2009); Pompeu Fabra University Barcelona (Jan 2012 - July 2012, part-time at Cuatrecasas) Weber gained her Bachelor of

Knut Martin TANDE

University of BergenFaculty of LawMagnus Lagabotesplass 1Bergen, NorwayTel: (+475) 55589551knut tande@uib no

Thomas THIEDE

Derner Kippshof 2344329 DortmundGermanymail@thomasthiede info<www thomasthiede info>

Franziska WEBER

University of Hamburg Faculty of LawInstitute of Law and EconomicsJohnsallee 3520148 Hamburg GermanyTel: (+49) 42838-7845Fax: (+49) 42838-6794franziska weber@uni-hamburg de

44 15th Annual Conference on European Tort Law 45 44 Curricula Vitæ 15th Annual Conference on European Tort Law 45

European and Comparative Law at the Universities of Oldenburg and Bremen, which included a study visit at the University of Sheffield She subsequently gained work experience as an advisor for the IHK Nord - Representation of Northern German Cham-bers of Commerce and Industry, Brussels She completed her LLM ‘Master European Law School’ at the University of Maas-tricht cum laude (top 3%) in 2008 In 2011 she was admitted to the bar in Madrid as a Spanish lawyer

Contributors

OPENING LECTURE

Catherine M SHARKEY

EUROPEAN TORT LAW YEARBOOK 2015

JOURNAL OF EUROPEAN TORT LAWForthcoming Special Issue on Liability for Unknown Risks

Izabela ADRYCH-BRZEZIŃSKAChristian ALUNARUHåkan ANDERSSONEwa BAGIŃSKAMarko BARETIĆElena BARGELLISøren BERGENSERAgris BITĀNSAndreas BLOCH EHLERSLucian BOJINGiannino CARUANA-DEMAJOEugenia DACORONIAGregor DUGARAnton DULAKIsabelle C DURANTJessy M EMAUSJörg FEDTKE

Suvianna HAKALEHTOMartin HOGGJiří HRÁDEKAnne LM KEIRSEJonas KNETSCHBernhard A KOCHPäivi KORPISAARIIrene KULLJanno LAHEPeter LOSERLuis DUARTE MANSOAttila MENYHÁRDAnnette MORRISBarbara NOVAKKen OLIPHANT Julian PEHMAndré DIAS PEREIRA

Ronen PERRYEoin QUILLLawrence QUINTANOAlbert RUDALoreta ŠALTINYTĖFelicitas SCHAD Michel SÉJEANSimona SELELIONYTĖ- DRUKTEINIENĖBarbara C STEININGERChristian TAKOFFKnut Martin TANDEThomas THIEDEViktor TOKUSHEVDavid ZAMMIT

Michael FAUREMartin A HOGG

Dirk LOOSCHELDERSPedro del OLMO

Franziska WEBERLouis VISSCHER

44 15th Annual Conference on European Tort Law 45 44 Curricula Vitæ 15th Annual Conference on European Tort Law 45

ECTIL and ETL Staff

Ernst KARNERHelmut KOZIOL

Conference Participants

Sonja AKBALJohannes ANGYANAndrew BELLEdina BUSCH TOTHDenan DUKICBarbara GASSNERAndrea HAIDENTHALERKathrin KARNER-STROBACH

Christa KISSLING-SEREINIGBarbara KÜHNEMichael LINSAlexander LONGINKatarzyna LUDWICHOWSKA- REDODavid MESSNERJulian PEHM

Barbara C STEININGERMarlene STEININGERDonna STOCKENHUBERDavid ULLRAMVanessa WILCOXEmma WITBOOILisa ZEILER

Hans-Jürgen AhrensUniversity of OsnabrückOsnabrück, Germany

Natalia AnikinaMoscow, Russia

Bjarte AskelandUniversity of BergenBergen, Norway

Helmut AulitzkyRisiko & Schaden ManagementInnsbruck, Austria

Francoise Marie AuvrayUniversity of LeuvenLeuven, Belgium

Mariana Henao AyoraUniversity of GironaGirona, Spain

Brunó BaloghEötvös Lorand UniversityBudapest, Hungary

Nina BaranowskaUniversity of WroclawWroclaw, Poland

Juan David Palacio BarrientosUniversity of GironaGirona, Spain

Dorottya BataEötvös Lorand UniversityBudapest, Hungary

Trynie BoezaartUniversity of PretoriaHatfield, South Africa

Jussara Cucalon BorborUniversity of GironaGirona, Spain

Jean-Sébastien BorghettiUniversity Panthéon-Assas (Paris II)Paris, France

Witold BorysiakUniversity of WarsawWarsaw, Poland

Markus BunkBankwissenschaftliche GesellschaftVienna, Austria

Maria Fernanda Almeida ButinaUniversity of GironaGirona, Spain

Adrian CandolinHelsinki, Finland

Julian Canan Borquez CastilloUniversity of GironaGirona, Spain

Johanna ChamberlainUppsala UniversityUppsala, Sweden

Shuber Daniel Urgiles ChicaUniversity of GironaGirona, Spain

Stefania CocosUniversity of GironaGirona, Spain

Regina Dahm-LoraingGeneral Reinsurance AGCologne, Germany

Hendrik DammannEcclesia GroupDetmold, Germany

Karl-Heinz DanzlSupreme Court of JusticeVienna, Austria

Maria Fernanda Fernandes de AlmeidaUniversity of CoimbraCoimbra, Portugal

Ina EbertMunich ReinsuranceMunich, Germany

46 15th Annual Conference on European Tort Law 47

Olivér FábiánEötvös Lorand UniversityBudapest, Hungary

Sandra FribergUppsala UniversityUppsala, Sweden Anne Marie FrøsethUniversity of BergenBergen, Norway

Ilze GailiteMotor Insurers Bureau of LatviaRiga, Latvia

Adél GelencsérEötvös Lorand UniversityBudapest, Hungary

Baiba GribusteMotor Insurers Bureau of LatviaRiga, Latvia

Aza GubaevaSaint Petersburg State UniversitySaint Petersburg, Russia

David Mardini GuzmanUniversity of GironaGirona, Spain

Maibritt Hauge GarvalUniversity of AalborgAalborg, Denmark

Attila HollósiEötvös Lorand UniversityBudapest, Hungary

Pablo Murillo IdrovoUniversity of GironaGirona, Spain

Marko JanjicijevicLaw Office Tomic Sindjelic GrozaBelgrade, Serbia

Kim JensenUniversity of AalborgAalborg, Denmark

David JohannsonUppsala UniversityUppsala, Sweden

Eszter JojartEötvös Lorand UniversityBudapest, Hungary

Thomas Kadner GrazianoUniversity of GenevaGeneva, Switzerland

Cornelia KaiserInternational Press OrganizationVienna, Austria

Flóra KaszapEötvös Lorand UniversityBudapest, Hungary

Jessica Kim SommerUniversity of BernBern, Switzerland

Søren KochUniversity of BergenBergen, Norway

Lena KolbitschUniversity of ViennaVienna, Austria

Gabriele KoziolKyoto UniversityKyoto, Japan

Botond KrebszEötvös Lorand UniversityBudapest, Hungary

Theo F KremerInsurers’ Institute on Personal Injury ClaimsThe Hague, The Netherlands

Janis KubilisVilgerts Legal & TaxRiga, Latvia

Linda KuhnHDI Global SEHannover, Germany

Ants KullSupreme Court of the Republic of EstoniaTartu, Estland

Christian LahnsteinMunich, Germany

Melinda LeinholzUniversity of GrazGraz, Austria

Bent LiisbergUniversity of BergenBergen, Norway

Lilla RaczEötvös Lorand UniversityBudapest, Hungary

Thomas LinimayerUniversity of LinzLinz, Austria

Ágnes LóránthEötvös Lorand UniversityBudapest, Hungary

Elisabeth LovrekSupreme Court of JusticeVienna, Austria

Ulrich MagnusUniversity of HamburgHamburg, Germany

Raphael MärkiUniversity of BernBern, Switzerland

Frans MarxNelson Mandela Metro- politan UniversityPort Elisabeth, South Africa

Harriet MiddleditchHerbert Smith Freehills LLPLondon, United Kingdom

Hanna MisiakUniversity of GdanskPoznan, Poland

Paw Allan Moeller ChristensenUniversity of AalborgAalborg, Denmark

Rebeka MohaiEötvös Lorand UniversityBudapest, Hungary

Jorge Joaquin Jaramillo MorenoUniversity of GironaGirona, Spain


Fumihiro NaganoKyoto UniversityKyoto, Japan

Juliane NassEcclesia GroupDetmold, Germany

Johann NeethlingUniversity of the Free StatePretoria, South Africa

Kazuyoshi NonomuraDoshisha UniversityKyoto, Japan

Florian ObermayrUniversity of LinzLinz, Austria

Isik OnayKoc University Law SchoolIstanbul, Turkey

Eva OndreasovaHigher Regional CourtVienna, Austria

Tuğçe OralUniversity of AnkaraAnkara, Turkey

Nikolett OrbánEötvös Lorand UniversityBudapest, Hungary

Solveiga PalevicieneGlimstedVilnius, Lithuania

Tekla PappNational University of Public ServiceBudapest, Hungary

Hyun-Ju ParkThe Hague University of Applied SciencesThe Hague, The Netherlands

Martin PeifferGeneral Reinsurance AGHamburg, Germany

Nicolas Rios RamirezUniversity of GironaGirona, Spain

Simon Ramlau-HansenUniversity of AalborgAalborg, Denmark

Manuela Gomez Angel RangelUniversity of BolognaBologna, Italy

Martin Jorge Gomez Angel RangelUniversity of GironaGirona, Spain

Olaf RissUniversity of LinzLinz, Austria

Nelson RosenvaldDamasio EducacionalBelo Horizonte, Brazil

Sigita RudenaiteSupreme Court of LithuaniaVilnius, Lithuania

Laura Tobar SalazarUniversity of GironaGirona, Spain

Ilse SamoyUniversity of LeuvenLeuven, Belgium

István SárhegyiEötvös Lorand UniversityBudapest, Hungary

Holger SchiebInterEurope AG, European Law ServiceDüsseldorf, Germany

Beatrix SchimaUniversity of ViennaVienna, Austria

Kristóf SohajdaEötvös Lorand UniversityBudapest, Hungary

Martin SpitzerVienna University of Economics and BusinessVienna, Austria

Karolina StenlundUppsala UniversityUppsala, Sweden

Jonas StuberUniversity of BernBern, Switzerland

Miriam Stüldt-BorsetzkyEcclesia GroupDetmold, Germany

Egidija TamosiunieneAppeal Court of LithuaniaVilnius, Lithuania

Jennifer TánczosEötvös Lorand UniversityBudapest, Hungary

Levente TattayCatholic University “Pázmány Péter”Budapest, Hungary

Lubos TichyCharles University of PraguePrague, The Czech Republic

Agne TikniuteVytautas-Magnus-UniversityKaunas, Lithuania

Balázs TökeyEötvös Lorand UniversityBudapest, Hungary

Bostjan TratarState Attorney’s OfficeLjubljana, Slovenia

Agnieszka TrzcinskaUniversity of GdanskPelplin, Poland

Laura Robledo VallejoUniversity of GironaGirona, Spain

Chris H van DijkKennedy Van der LaanAmsterdam, The Netherlands

Wannes VandenbusscheUniversity of LeuvenLeuven, Belgium


Age VärvUniversity of TartuTallinn, Estonia

Dalia VasarieneSupreme Court of LithuaniaVilnius, Lithuania

Michael VothknechtEcclesia GroupDetmold, Germany

Christiane WendehorstUniversity of ViennaVienna, Austria

Ulrich WerwigkSwiss Re EuropeMunich, Germany

Pierre WidmerBern, Switzerland

Corinne Widmer LüchingerUniversity of BaselBasel, Switzerland

Bénédict WinigerUniversity of GenevaGeneva, Switzerland

Petra WitzlEötvös Lorand UniversityBudapest, Hungary

Inga ZemkauskienėMykolas Romeris UniversityVilnius, Lithuania

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