Damage Claims Research Articles

La construcción jurisprudencial del principio de responsabilidad del Estado desde la autonomía procesal y sus límites (equivalencia y efectividad)

Spain’s infringement of the principle of effectiveness, motivated by the legal regime applicable to the liability of the State-legislator, does not precisely strike out as surprising. The judgment Commission v Spain contains, however, a novel and worrying development with regard to the principle of equivalence – a principle that, according to the judgment, has not been infringed by national legislation, which mandates that the Brasserie conditions be applied to claims for damages based on EU law, whereas such conditions are not applicable to claims for damages caused by laws declared unconstitutional. On this point, the judgment presents important challenges that cast doubt on its coherence with previous case law and with the very raison d’être of the principle of equivalence. The ruling leaves open key questions on the true legal nature of effectiveness and equivalence and their relationship with the principles of equality and effective judicial protection. Are these genuine autonomous general principles? Should their scope of application be determined following the same rules as the Charter? And ultimately, are the conclusions on the scope of application of the principle of equivalence defined in this ruling applicable to the scope of application of the Charter itself?

If coordination of remediation and restoration under CERCLA is such a good idea, why is it not practiced more widely?

Decades of practice have demonstrated favorable outcomes when restoration is considered early in the remedial process, especially when parties have an opportunity to avoid litigation over natural resource damage (NRD) claims. However, these two separate processes are most often done sequentially - with clean up decisions for contaminated sites made during the remedial investigation and feasibility study process and restoration of injured resources during a subsequent natural resource damage assessment. Coordinating these processes offers many advantages for remediating and restoring hazardous waste sites. In this paper, we illustrate why this is true, and explore reasons why it is not practiced more universally. Coordination can generate savings by reducing the amount of time and money required to address natural resource damage claims and build trust among stakeholders. Yet, there are barriers to coordination, such as uncertainty over the benefits that restoration will generate, or the potential risk that undertaking coordination could be viewed as admitting to liability for harm to natural resources. Existing federal statutes also can be an obstacle because they bifurcate remediation and restoration. The economic, legal and policy issues relevant to the integration of remediation and restoration were examined, and how they might be used to encourage early coordination. Habitat equivalency analysis was used to illustrate the tangible natural resource service gains that can be achieved when the processes are coordinated. Selected site-specific examples were drawn upon where coordination occurred and documented. This information was augmented with the results of a survey of companies about their experience with coordination. Finally, we discuss the potential policy and legal approaches that might help bring remediation and restoration together and result in improved practices nationwide, and thereby provide benefits to industrial parties, government, and affected communities alike.

집단소송 확대 도입방안에 관한 법적 검토

In the era of mass production, mass consumption, and information industry, collective damage is constantly occurring, such as the humidifier disinfectant disaster, credit card company personal information leakage, BMW vehicle fire, and DLF/Lime/ Optimus large-scale investment loss. Accordingly, discussions on the general introduction of a class action system as an effective remedy for collective damage have been ongoing for a long time. has been introduced On September 28, 2020, the Ministry of Justice made a legislative notice of the class action bill prepared as a government bill. Immediately after the announcement, major media outlets such as the business area and economic newspapers expressed strong opposition to the bill, citing the increased burden on companies. The main point of opposition was that there could be an increase of abuse of the litigation, and that management uncertainty could increase. In addition, there was strong disagreement within the government citing the burden on companies following the expansion of the class action system, and due to this, consultations between ministries were not successfully concluded, and the current situation was that the State Council for the submission of the bill to the National Assembly was not made.
 The government draft of the class action act prepared by the Ministry of Justice applied the class action act to all claims for damages involving 50 or more persons by fully and generally introducing the class action system and applying it to all fields. As a representative party-type class action, opt-out method is adopted, and based on the existing “Securities-Related Class Action Act,” an attempt has been made to improve strict lawsuit filing and litigation permission requirements, which have been pointed out as problems. In addition, there are parts in which the burden of claim and proof has been eased for efficient relief of collective victims, such as the establishment of a summary responsibility for claim and improvement of the order to submit materials, etc. In addition, forward-looking bill contents that could not be found in the existing class action bill are being prepared, such as allowing the use of jury system according to the will of the representative party.
 At the time of the legislative notice, the business area, the media, and even some government departments expressed serious concerns about the government's bill for the class action act. It was that there was no safety device against the abuse of lawsuits, so there was concern about contraction of business activities and increase in social costs due to malicious lawsuits, and the shock that companies would experience due to the rapid expansion of the application field was too great. In addition, it criticized the effectiveness of opt-out, the representative party lawsuit method, and the adoption of jury system, etc., which are contrary to our legal system or legal principles, and that serious side effects such as trade secret leakage are expected due to excessive mitigation of the burden of proof.
 However, when looking back at the operation of securities-related class actions, the business's concerns about misconduct are close to speculation, and the existing strict measures to prevent abuse, such as the litigation permit system, are generally maintained. In addition, some argue that our legal system is based on civil law, and some object that the various victim protection measures embraced by the government are contrary to legal principles, is not a problem.
 If it is difficult for a small number of victims to file a lawsuit on their own, it can provide relief, and from the standpoint of the company being sued, a class-action is the most appropriate, as it prevents multiple lawsuits from being repeated and resolves the dispute on a one-time basis. It is thought to be a means of resolving disputes, and the government bill of the Class Action Act also adopts this method.

Mapping Pluvial Flood-Induced Damages with Multi-Sensor Optical Remote Sensing: A Transferable Approach

Pluvial floods caused by extreme overland flow inland account for half of all flood damage claims each year along with fluvial floods. In order to increase confidence in pluvial flood susceptibility mapping, overland flow models need to be intensively evaluated using observations from past events. However, most remote-sensing-based flood detection techniques only focus on the identification of degradations and/or water pixels in the close vicinity of overflowing streams after heavy rainfall. Many occurrences of pluvial-flood-induced damages such as soil erosion, gullies, landslides and mudflows located further away from the stream are thus often unrevealed. To fill this gap, a transferable remote sensing fusion method called FuSVIPR, for Fusion of Sentinel-2 & Very high resolution Imagery for Pluvial Runoff, is developed to produce damage-detection maps. Based on very high spatial resolution optical imagery (from Pléiades satellites or airborne sensors) combined with 10 m change images from Sentinel-2 satellites, the Random Forest and U-net machine/deep learning techniques are separately trained and compared to locate pluvial flood footprints on the ground at 0.5 m spatial resolution following heavy weather events. In this work, three flash flood events in the Aude and Alpes-Maritimes departments in the South of France are investigated, covering over more than 160 km2 of rural and periurban areas between 2018 and 2020. Pluvial-flood-detection accuracies hover around 75% (with a minimum area detection ratio for annotated ground truths of 25%), and false-positive rates mostly below 2% are achieved on all three distinct events using a cross-site validation framework. FuSVIPR is then further evaluated on the latest devastating flash floods of April 2022 in the Durban area (South Africa), without additional training. Very good agreement with the impact maps produced in the context of the International Charter “Space and Major Disasters” are reached with similar performance figures. These results emphasize the high generalization capability of this method to locate pluvial floods at any time of the year and over diverse regions worldwide using a very high spatial resolution visible product and two Sentinel-2 images. The resulting impact maps have high potential for helping thorough evaluation and improvement of surface water inundation models and boosting extreme precipitation downscaling at a very high spatial resolution.

Five Legal Pitfalls in Informing Patients About the Treatment Alternative "Ceasarean Sectio"

As is well known, claims for damages in birth injury law can arise not only from treatment errors, but also from incorrect information provided to the pregnant woman. The accusation that the possibility of a C-section was not explained, not explained sufficiently, or not explained in time plays an important role here. The accusation is practically significant because it is very often raised in birth injury disputes and is not infrequently successful. In practice, the same information errors that can lead to liability occur time and again.

Pleading competition damages claims and defences: recent guidance from the Court of Appeal and the Competition Appeal Tribunal

The Court of Appeal and the Competition Appeal Tribunal have recently handed down guidance in NTN v. Stellantis and O’Higgins and Evans, as to the requirements that must be satisfied to plead a competition law claim or defence, whether the claim is an individual claim or a collective action. This article considers the economic and legal issues that need to be addressed in pleadings, in the light of that guidance. Both judgments make clear that economists must be consulted at the very earliest stage to ensure that the pleadings, whether a claim or defence, or in an individual claim or a collective action, reflect clearly the economic theories relied upon and do so by reference to underlying facts. If a pleading does not comply with this guidance, it risks being struck out.

The interplay between leniency programmes and private enforcement: the economist perspective on recent policy proposals

Leniency policies grant substantial fine reductions to firms that disclose their former participation in a cartel. Such policies may, thereby, destabilize existing cartels and disincentivize the formation of new ones. Alternatively, some argue that they might have the opposite effect of incentivizing collusion by reducing the punishment for former cartel participants, thereby raising the collusive payoff. The overall decline in leniency applications in the European Union since 2014 calls for an analysis of the interplay between the 2006 Leniency Policy and other competition policies, most notably the 2014 Damages Directive. This article discusses the interaction between these two competition policy tools, arguing that the liability of immunity recipients in follow-on damage claims tends to stabilize cartels, and assesses several proposals that aim to ensure that public and private cartel enforcement tools are more in sync.

INTERPRETING THE PROVISIONS OF THE CYBERCRIMES ACT 19 OF 2020 IN THE CONTEXT OF CIVIL PROCEDURE: A FUTURE JOURNEY

It is accepted nowadays that cyberspace is used extensively to commit cybercrimes and cybersecurity offences. Victims of cybercrime can use civil procedure to institute claims for damages. Civil procedure is a branch of law that allows victims of cyberspace crimes to institute claims for damages. This article examines the impact of the Cybercrimes Act 19 of 2020 (Cybercrimes Act) on South African civil procedure. It appears that a contravention of the Cybercrimes Act may result in financial problems for the plaintiff, which then enables the latter to institute a civil claim against the defendants. The authors determine whether contravening the provisions of the Cybercrimes Act gives rise to a cause of action that permits the plaintiff to institute civil proceedings for damages suffered. While the Cybercrimes Act is lauded for its provisions addressing cybercrime, room for improvement is identified. Lastly, the authors conduct a comparative analysis between the provisions of the Cybercrimes Act and the Budapest Convention.

The Conundrum of Two Fellows in The Same Ship: A Comparative Legal Analysis of The Duplicity of Damages in South Africa

Abstract South African law recognizes the common law right of the plaintiff to institute a claim for damages arising from loss caused by the delictual conduct of the defendant. In addition to the claim for common law damages for pain and suffering, insult, shock, past and future medical expenses, and loss of enjoyment of the amenities of life, depending on the nature of the delict, the plaintiff also has the right to claim constitutional damages for the infringement of constitutional rights. On that score, the South African Constitution, 1996 empowers the courts to ‘grant appropriate relief’ and to make ‘just and equitable’ orders in the context of common law and constitutional damages. This has resulted in the duplicity of damages in our law without clear guidance on how these two delictual “fellows” should interact in practical scenarios. Further, the courts have dragged their feet when it comes to the application of constitutional damages largely due to their orthodox approach which militates against the development of constitutional damages in South Africa. This article proposes avenues which enable the courts to take a coordinated approach in the application of these two remedies. It argues that in determining quantum for damages, the court should take a functional and pragmatic approach which is based on the ethos of fairness and equity over and above common law tenets.

양도금지특약 있는 채권양도의 효력

Subsection 449(2) of the Civil Act provides that “Where the parties have declared a contrary intention, a claim shall not be assigned: Provided, That such declaration of intention, cannot be set up against a third person acting in good faith” Regarding the interpretation of this subsection, the existing majority theory and precedents interpret that if there is a special agreement on prohibition of transfer, the transferability of the claim is lost and the transfer of the claim does not occur, but in order to protect the safety of the transaction, the invalidity cannot be claimed against a bona fide third party. This is referred to as the property effectiveness theory. However, on the grounds that improving the property character and transferability of claims is an international trend, the claim effectiveness theory is strongly asserted, which interprets that the transfer of receivables with a special agreement on transfer prohibition is valid, but the debtor can refuse performance against the malicious assignee. Accordingly, an opinion on amendment to subsection 449(2) of the Civil Act was presented.
 However, the claim effectiveness theory has the following questions.
 First, because the current subsection of Civil Act explicitly stipulates that “non-transferability”, it is questionable that this subsection may be interpreted as “transferability.” The reason why the Civil Law has a separate provision on the special agreement for the prohibition of the transfer of receivables is that if the principle of relativity of claims is applied to the transfer of receivables, it may break the trust of the debtor who believed in the special agreement for the prohibition of the transfer of claims, and if the effect of the special agreement for the prohibition of the transfer of receivables is only applied to the contracting parties because it cannot affect a third party, the principle of relativity of claims cannot be adhered.
 Second, the claim effectiveness theory is thought to be an interpretation that overemphasizes the interests of the creditor and the transferee in relation to effect of transfer of receivables with special agreement for prohibition of transfer. It is the creditor and the debtor who have to weigh the profits in relation to effect of transfer of receivables with special agreement for prohibition of transfer, so it would not be reasonable to overemphasize the interests of the transferee.
 Third, the claim effectiveness theory explains that transfer of receivables with special agreement for prohibition of transfer is valid, and the creditor only needs to impose liability for default on the violation of the special contract for non-transfer. However, if the creditor's default is liable to the damages which debtor does not suffer damages, the claim for damages against the creditor will be of no practical benefit. Therefore, it is not appropriate as a legal responsibility for the violation of special agreement for prohibition of transfer.…

PTSD malingering detection in damage claim cases: Diagnostic accuracy in cases of personal injury as a result of motor vehicle accidents

This study aimed to assess the accuracy of post-traumatic stress disorder (PTSD) diagnoses made by mental health experts in people reporting post-traumatic stress symptoms related to traffic accidents. Data were collected from sixty participants: 30 with possible traumatic experiences and 30 who had never experienced this or other types of traumatic events. Six professional diagnosticians examined the participants with Structured Clinical Interview for the Study of Axis I Disorders (SCID-I for DSM-IV-TR) in conditions similar to those typical of judicial cases related to traffic accident damage claims. There was no significant difference in the number of PTSD diagnoses between malingerers and non-malingerers. Some PTSD symptoms were more frequently recognized in malingerers. This study demonstrates that even professional diagnosticians with clinical and jurisprudence experience have significant difficulty identifying PTSD malingering. This difficulty can be linked to the limitations of diagnoses based on introspective reports.

Pozasądowe prawne modele kompensacji szkód medycznych – analiza prawno-porównawcza

The article addresses the topic of alternative legal models for pursuing out-of-court claims for medical damages, taking as its starting thesis the inefficiency of the Polish model stemming from its faulty legal construction. The purpose of the article is to conduct a legal analysis of the Polish alternative model of medical damage compensation, with particular attention to de lege ferenda postulates presented in the legal doctrine. In addition, in order to show the possible directions of legislative changes, the article presents the characteristics of selected foreign alternative models of medical damage compensation, including the model operating in New Zealand, which is an example of a model that can be classified as ‘no-fault’, the German model and the French model. The article culminates with an analysis of the draft of the Law on Quality in Health Care and Patient Safety to the extent that the draft provides for a new legal regulation of the alternative model for the out-of-court settlement of medical damage claims. The purpose of this analysis was to see whether the legislator has recognized the demands for change articulated in the legal doctrine, and whether the draft law on quality in health care and patient safety is inspired by solutions adopted in foreign legislation in terms of the legal construction of the alternative model of compensation for medical damages. The analysis here confirms the initial thesis of the work and leads to the conclusion that the draft law on quality in health care and patient safety takes into account many proposals constructed in the legal doctrine in connection with regulating an alternative model for the compensation of medical damages. It is also clear that the proposed model is inspired by some solutions that have been successful in other countries. Nevertheless, the article distinguishes proposed regulations that may still raise doubts and reservations.

Developing Flood Risk Zones during an Extreme Rain Event from the Perspective of Social Insurance Management

Recently, Japan has been hit by more frequent and severe rainstorms and floods. Typhoon Hagibis caused heavy flooding in many river basins in central and eastern Japan from 12–13 October 2019, resulting in loss of life, substantial damage, and many flood insurance claims. Considering that obtaining accurate assessments of flood situations remains a significant challenge, this study used a geographic information system (GIS)-based analytical hierarchy process (AHP) approach to develop flood susceptibility maps for the Abukuma, Naka, and Natsui River Basins during the Typhoon Hagibis event. The maps were based on population density, building density, land-use profile, distance from the river, slope, and flood inundation. A novel approach was also employed to simulate the flood inundation profiles of the river basins. In addition, a crosscheck evaluated the relationship between flood insurance claims and the developed flood risk zones within the river basins. Over 70% of insurance claims were concentrated in high to very high risk zones identified by the flood susceptibility maps. These findings demonstrate the effectiveness of this type of assessment in identifying areas that are particularly vulnerable to flood damage, which can be a useful reference for flood disaster management and related stakeholder concerns for future extreme flood events.

García de la Rasilla, Carmen, and Jorge Abril Sánchez, eds. Immature Playboys & Predatory Tricksters: Studies in the Sources, Scope and Reach of Don Juan

García de la Rasilla, Carmen, and Jorge Abril Sánchez, eds. <i>Immature Playboys &amp; Predatory Tricksters: Studies in the Sources, Scope and Reach of Don Juan</i>

해제로 인한 원상회복에서의 원물반환 불능의 효과

In social life, it is not uncommon for contracts of sale to be canceled. This includes contract cancellation, such as contract cancellation or cancellation pursuant to Article 565, or statutory cancellation due to delay in performance or inability to perform. At this time, the prevailing view and the Supreme Court regard the relationship of restoration to original state due to cancellation as the relationship of return of unjust enrichment, which is related to legal claims, and apply the provisions on the return of unjust enrichment unless there are special provisions such as Article 548 regarding restoration to original state. However, there are still many issues that remain unresolved here. One of such issues is the issue of liability for damages and risk bearing due to the impossibility of returning the original goods in the restoration of the original state due to cancellation, and the rightt of vicarious compensation Through this article, we will discuss the subject and scope of the obligation to return the original property and value in restoration of the original condition due to the cancellation of the sales contract, the right to make a claim for damages and the right to claim compensation for damages (Article 390) due to the impossibility of returning the original property, and the risk bearing problem. I looked. In particular, although there is no express provision in the Civil Act, the dominant view and the right to claim the subject recognized by the Supreme Court are not only recognized in the case of inability to pay (impossibility to perform), etc. I knew that it could be accepted in any case. And apart from the liability for damages caused by default on the basis of the default that caused the statutory release, if the recipient's intention or negligence is recognized for the impossibility of returning the original state due to the release, the recipient also claims to the beneficiary at this time. It was also confirmed that it could bear the liability for damages under Article 390. For example, if the buyer, who is the recipient who is to deliver (return) the object to its original condition after the contract is canceled due to the buyer's delay in paying the price, loses the object by negligence, Since the recipient, obligated to return the object, violated the duty of care of a good manager in keeping the object and destroyed the object, he is liable for damages caused by the non-fulfillment of obligations. Compensation is caused by non-fulfillment of contractual obligations, and compensation for damages due to inability to return original goods in restoration to original state due to cancellation is caused by non-fulfillment of statutory obligations, which is the obligation to restore the original state. In addition, regarding Article 553, which stipulates the special cause of extinction of the right of rescission, the prevailing opinion affirms the application of Article 553 even before the right of rescission occurs, but it is difficult to agree with the above view because the extinguishment can only be discussed after the right of rescission has occurred. It is hoped that this article will be of some help in understanding the nature and effect of the obligation to restore the original state due to cancellation.

Ecological damage claim program and environmental violations: Evidence from a quasi-natural experiment in China

Whether the ecological damage claim program can resolve negative institutional and intergenerational externalities for pollution matters for sustainable development. We employ a difference-in-differences model and data on a panel of listed firms in heavily polluting industries from 2012 to 2017 to examine the effects of China's ecological damage claim pilot policy on corporate environmental violations. Our results show that the policy significantly decreased environmental violations by firms in the pilot cities compared to those in non-pilot cities. We examined whether environmental enforcement and compliance rates influenced violations and mitigated negative institutional and intergenerational externalities. We found that the policy also produced a deterrent effect on other firms. In addition, we found that the ecological claim policy performed better in areas with high levels of enforcement and environmental attention. We found also that more independent firms and firms with a larger environmental performance gap were more proactive.

Perceived earthquake risk in housing purchases

This paper investigates the impact of an earthquake on households' perception of the seismic risks associated with residential locations—and, consequently, the impact of this change in perceptions on real estate prices—by performing revealed preference analysis on a unique data set of house prices and damage claims after the 2010/2011 Canterbury earthquake in New Zealand. We show that both informational and heuristic obstacles could have caused households to underestimate location earthquake risk before the quake and overreact to it after the quake. Our findings highlight the importance of quake-related information for seismic risk management and are robust to households’ risk preferences in neighborhood propensity score matching.

Unfair Commercial Practices and Individual Consumer Claims for Damages – The Transposition of Art. 11a UCP Directive in Germany and Austria

Abstract Article 11a(1) UCP Directive obliges the Member States to provide individual rights for consumers harmed by unfair commercial practices. This new provision is intended to ensure that consumers have access to proportionate and effective remedies, including compensation for damage suffered and, where relevant, a price reduction or the termination of the contract. Although the laws against unfair competition in Germany and Austria have similar basic structures, the transposition of Art. 11a(1) UCP Directive shows some significant differences in the way national law provides individual protection for consumers. The legal systems in Germany and Austria are confronted with challenges both in the correct transposition of Art. 11a(1) UCP Directive and the incorporation of individual consumer claims for damages into the structures of domestic law. This article intends both to give a first overview and also to attempt to answer some of the open questions.

Ascertaining the effects of service quality on customer loyalty in the context of ocean freight forwarders: An integration of structural equation modeling and network data envelopment analysis

In this study, a model was established using structural equation modeling (SEM) to ascertain the average impact of service quality on the loyalty of ocean freight forwarder (OFF) customers. The results reveal that the average impact of service quality is conveyed through the relationship of trust and customer satisfaction to customer loyalty, but this impact is observed on an individual level. To deal with this issue, a network data envelopment analysis (NDEA) model based on SEM was proposed. The results demonstrate that, in terms of service quality, small business customers have higher requirements for the professionalism of OFF business personnel, cargo damage claim handling procedures, and booking convenience, while large business customers are more concerned with the punctuality and accuracy of container pickup and delivery. The results of our empirical analysis also indicate that the level of loyalty that large business customers are likely to develop is quite high. The large gap between the current and expected levels of customer loyalty implies that OFFs should work harder to increase the loyalty of their large business customers.

Intergenerational externalities and corporate green innovation

AbstractBased on the intergenerational externalities views, this paper builds the link between ecological damage claim policy and firms' green innovation. Making polluters bear intergenerational responsibility is considered to be a key move to break intergenerational externalities and effectively address the problem of multiple environmental failures. The ecological damage claim policy makes the environmental rights of future generations being remedied through judicial procedures, and can clarify pollution responsibility to push firms to choose long‐term environmental solutions for achieving intergenerational sustainability and maintaining intergenerational justice. Using longitudinal data (2012–2017) covering 4992 Chinese firm‐year observations in high‐pollution industries, we find that ecological damage claim policy promotes firms' green innovation. This positive effect is stronger when the firm is located in a region with stronger environmental enforcement and more environmental organizations.