Piesardzības pasākumu nozīme, piemērojot civiltiesisko atbildību par deliktu

Abstract

Generally speaking, civil liability can be avoided if the exercised care matches potentiality and significance of the risk. Therefore, the greater the risk, the greater care should accordingly be exercised. When determining the level of such required care, the availability and extent of precautionary measures is evaluated. However, it is a common occurrence in Latvian case law that the strict liability is effectively disguised as a fault-based liability. Namely, the courts require that the precautionary measures are taken to such an extent that the tortfeasor‘s general duty of care is in essence transformed into a duty not to cause any damage at all, thus making analysis of the taken precautionary measures hardly relevant. Given that the implementation of precautionary measures usually comes at a price, the existing case law has stepped into a dangerous territory where persons are required to over-invest their resources in order to avoid civil liability. In this article, the author argues that in the fault-based liability model any precautionary measures shall generally be taken only if the cost of their implementation is lower than the cost of the potential risk.