Fault Liability Research Articles

The Commission's White Paper on Environmental Liability: A Weak Case for an EC Strict Liability Regime

In February, 2000, the European Commission issued the long-awaited White Paper on Environmental Liability. The White Paper outlines the Commission's views on the key elements of a proposed environmental liability directive. This directive would provide for strict liability for conventional and environmental damage caused by dangerous activities regulated by EC law (i.e. virtually all industrial activities), and fault liability for natural resource damage caused by non-dangerous activities. In the Commission's view, such a regime would implement the EC Treaty's grand principles of environmental policy (the preventive, precautionary, and polluter pays principles) and improve the enforcement of EC environmental law. The existing national liability regimes are deemed inadequate by the Commission. This article reviews the main substantive law (and some related procedural law) features of the liability scheme outlined in the White Paper. The first part discusses the justifications for EC legislation on environmental liability. It analyzes whether under the subsidiarity principle, or for reasons of improving the functioning of the internal market, the EC, rather than the Member States, should set any necessary policy in this area. It addresses also the key principles of the EC's environmental policy that the Commission invokes to support its proposal. The second part focusses on the critical question of strict versus fault liability, and the burden of proof. The White Paper argues that strict liability should be preferred over fault liability. The arguments to support strict liability are reviewed. In the third part, the scope of the regime proposed by the Commission is reviewed. Dangerous and non-dangerous activities would be treated in different ways, and the Commission proposes certain exemptions to the directive's scope. The fourth part discusses the issue of insurance and financial security. To secure funds for compensating environmental harm, the White Paper suggests that insurance should play an important role. In part five, the liable persons and available defenses are discussed. Part six analyzes the White Paper's proposals with respect to valuation of natural resource damage, contaminated sites, and standing to sue. Some conclusions are set forth in part seven.

The Commission's White Paper on Environmental Liability: A Weak Case for an EC Strict Liability Regime

In February, 2000, the European Commission issued the long-awaited White Paper on Environmental Liability. The White Paper outlines the Commission's views on the key elements of a proposed environmental liability directive. This directive would provide for strict liability for conventional and environmental damage caused by "dangerous" activities regulated by EC law (i.e. virtually all industrial activities), and fault liability for natural resource damage caused by non-dangerous activities. In the Commission's view, such a regime would implement the EC Treaty's grand principles of environmental policy (the preventive, precautionary, and polluter pays principles) and improve the enforcement of EC environmental law. The existing national liability regimes are deemed inadequate by the Commission. This article reviews the main substantive law (and some related procedural law) features of the liability scheme outlined in the White Paper. The first part discusses the justifications for EC legislation on environmental liability. It analyzes whether under the subsidiarity principle, or for reasons of improving the functioning of the internal market, the EC, rather than the Member States, should set any necessary policy in this area. It addresses also the key principles of the EC's environmental policy that the Commission invokes to support its proposal. The second part focusses on the critical question of strict versus fault liability, and the burden of proof. The White Paper argues that strict liability should be preferred over fault liability. The arguments to support strict liability are reviewed. In the third part, the scope of the regime proposed by the Commission is reviewed. Dangerous and non-dangerous activities would be treated in different ways, and the Commission proposes certain exemptions to the directive's scope. The fourth part discusses the issue of insurance and financial security. To secure funds for compensating environmental harm, the White Paper suggests that insurance should play an important role. In part five, the liable persons and available defenses are discussed. Part six analyzes the White Paper's proposals with respect to valuation of natural resource damage, contaminated sites, and standing to sue. Some conclusions are set forth in part seven.

The Commission's White Paper on Environmental Liability: A Weak Case for an EC Strict Liability Regime

The White Paper on Environmental Liability published in February 2000; the main proposals as to the law. The reasons for legislating at the EC level — subsidiarity, the internal market, policy principles. Strict and fault liability; the proposal for strict liability in respect of damage caused by dangerous activities and the justifications for it; fault liability in respect of damage caused by other activities; the burden of proof. The scope of the proposed directive: strict and fault liability; prospective application. Insurance and financial security: the proposed role of insurance and its possible adverse consequences. Liable persons, liability being channelled to the operator; multiple liable parties. Limited defenses contemplated; the regulatory compliance defense; the state of the art defense. Damage to natural resources and problems of valuing such damage. The proposed regime in respect of contaminated sites. Standing to sue. Conclusions, including that the proposed scheme would be problematic and that the White Paper calls for further thought.

Liability for defects in bespoke software: are lawyers and information scientists speaking the same language?

Liability for defects in bespoke software: are lawyers and information scientists speaking the same language?

The role of interest groups in products liability law

Describes the impact of recent changes in US tort law and identifies four interest groups concerned: manufacturers, insurance companies, consumers and lawyers. Discusses their relative strengths, motivations and influence on judicial decisions, citing relevant liability cases for product‐related injuries due to manufacturing defects, design defects and inadequate warnings. Develops a logistic regression model to relate state adoption of strict liability standards to the relative strength of interest groups and applies it to US data. Suggests that the strength of manufacturers and, more particularly, lawyers is significant; and that liberal states are more likely to adopt strict liability for design defects. Calls for further research on the role of the legal profession in legal change.

Changing technology in health: product liability

Greater health consumer awareness and increasing levels of concern for the rights of patients have led to patient care technology being more strictly regulated. This article analyses both the general law issues and the particular statutes that will be of relevance to those involved in evaluating and implementing such technologies. There are three main elements to this analysis. Firstly, there is the issue of liability for a product fault, which will in many cases be directed by legislation back to the manufacturer of the goods. Secondly, those involved in placement of patient care technology should be aware of anti-discrimination legislation when making placement decisions. Finally, occupational health and safety legislation sets minimum standards for technology used in healthcare facilities. The author suggests ways of complying with the laws for each regulatory regime.

Fault and absolute liability in pre‐modern contract law

(1997). Fault and absolute liability in pre‐modern contract law. The Journal of Legal History: Vol. 18, No. 2, pp. 1-31.

Economic aspects of environmental liability: an introduction

The present article forms an introduction to those that follow. It sets the law relating to civil liability for environmental damage in the context of economic theory, and examines, inter alia, whether fault liability or strict liability is the better instrument for ensuring that environmental damage is minimised and whether the liability of individual industrial operators is best covered by insurance or whether specialist compensation funds are a more effective option.

Transnational Environmental Liability and Insurance

Shift from fault to no fault liability specific laws and statutes / recent developments multiple tort feasors / combined pollutor theories causality and assumption of proof / statistical proof the notion of damage eligible for compensation (ecological damage, district court Rotterdam - Romanian tanker, cleaning up birds Council of Europe draft convention on civil liability for damage resulting from activities dangerous to the environment limited insurability of unlimited liability - serial claims, aggregates and alternatives cleaning up measures on/outside the insured site / insurability transportation of hazardous goods CRTD Treaty.

Abuse of rights in civil law tradition

Abstract. The doctrine of abuse of rights has a long history but little future. The jurists who developed the jus commune could draw on Roman sources to support the principle that the exercise of one’s rights could not be relied on to justify intentional harm to another. In mediaeval times this principle was mainly used to prevent unsuitable use of building rights and assist in town planning. The requirement of intention was diluted by reference to numerous presumptions. The Napoleonic code avoided the need to rely on the doctrine by including certain zoning and town criteria within the code, but it was called upon later in the nineteenth century as a way of dealing with conflicting interests in the way land was used and the activities allowed on the land. This use of the doctrine was in turn rendered otiose when the tort provisions of the civil code began to be interpreted in an extensive manner which allowed conflicting interests to be weighed in determining the existence of fault liability. The doctrine of abuse of rights has thereafter played only a restricted role in the French legal system. It has been codified in relation to abuse of procedural rights within the justice system. The experience of other legal systems is similar. Although the principle prohibiting the abuse of rights was codified in Switzerland, Germany and Italy, these provisions have only rarely been relied on in practice. The need to prove intention is too onerous. Other provisions of the codes, such as the requirement of good faith in §242 BGB have enabled an equitable result to be achieved without resort to the doctrine of abuse of rights. It has also been subsumed within traditional principles such as venire contra factum proprium and unconscionability. Indeed the abuse of right theory is too rigid to provide an adequate resolution of the underlying problem: the balancing of conflicting interests. More flexible approaches have rendered the doctrine largely superfluous.

Tort Reform and Malpractice Liability Insurance

Legal factors related to the malpractice liability insurance purchased by general dentists in the United States were investigated using a comprehensive multivariate model that assessed the contribution of legal provisions affecting the probability of a malpractice claim, the probability of a payment, and the average size of the payment. General practice dentists in the United States were selected randomly, and 3,048 dentists were studied by mail survey. A number of legal statutes (periodic payment allowed, percentage fault liability informed consent limits, limits on res ipsa loquitor, attorney fee control, some statute of limitations provisions) had the intended effect of reducing the malpractice insurance sought by dentists. Other provisions, such as binding arbitration, may have unintended cost-raising effects. Previous malpractice claims were associated with purchasing greater amounts of insurance. These findings have implications for future changes in the legal system as part of health care reform.

The Danish Patient Insurance Act of 1991: first experiences

In 1991, Denmark established a Patient Insurance Scheme. The Scheme entered into force on 1 July 1992 and the first experiences with the Scheme have now been gained. Even though it is still too early to draw a clear picture of the significance of the Scheme, it is already safe to conclude that the Scheme provides a much more extensive coverage than did the hitherto prevailing negligence-based liability system. Furthermore, it is safe to conclude that the Scheme works much faster than the fault liability system where it might take years before the courts reached a decision.

A Restatement of Torts

In 1986 the American Institute (ALI), which is most well known for its of the Law efforts, launched an ambitious project to evaluate contemporary personal injury law. Five years later, the ALI published and put before the membership of the Institute the results of that project in a massive two volume Reporters' Study.1 In May 1991, at the Institute's meetings devoted to discussion of the Study, which I attended, several members complained that this project was, unfortunately, unlike the ALI's previous endeavors. They argued that the study was inappropriately political or policy-oriented, in contrast to what a Restatement (Third) of Torts might have been. These complaints are ironic. First, most of the important recommendations of the Study can readily be described as modifications of the ALI's Restatement (Second) of Torts. At the same time, it is naive to suggest that key changes made in the first Restatement of Torts by the second were not also driven by policy or politics. The most obvious and important example is section 402A concerning manufacturers' strict liability for product defects.2 Section 402A did not restate the dominant common law rule in

A study on lender-vendor liability for constructural defects (1)

A study on lender-vendor liability for constructural defects (1)

The Traditional Developer’s Role and Legal Contractual Responsibilities and Liabilities Re‐examined

Lists key tasks developers have traditionally been expected to undertake. Points out two areas where the developer has not accepted responsibility: on‐time completion and liability for latent defects. Discusses the developer′s role in time for completion, construction obligations, workmanship and materials, design liability, contractual liability and collateral warrantees. Concludes that developers are being pressured to accept more responsibility for their contractors′ work, by tenants, purchasers and financiers.

The Impossibility of General Strict Liability

Both the history of tort law and the recent theoretical literature on the subject suggest that there are two intellectually tenable and more or less equally respectable answers to the question of what should be the general standard of liablity in tort, namely fault and strict liability. Each is generally thought to have represented, at one time or another, the dominant approach of the positive common law. Each has its modern theoretical proponents: a fault-based approach has been argued for on grounds of economic efficiency by Richard Posner, for example, and on grounds of individual moral right by, among others, Ronald Dworkin and Ernest Weinrib; strict liability, on the other hand, has received an economic defence in the work of Guido Calabresi, and a rights-based defence in the writings of Richard Epstein. Each of these theorists has felt compelled not only to offer positive arguments in favour of fault or strict liability but also to answer the intellectual case, whether perceived as being founded on a conception of efficiency or of individual rights, for the rival approach.

Black points: Liability for clean-up costs

The paper describes in what cases, and by whom, remedial action can be taken under Belgian law in order to clean up environmentally dangerous waste deposits. Emphasis is placed on the situation in the Flemish region. An overview is given of the general liability rules relevant to the allocation of the clean-up expenses. Especially important, in this respect, are the liability for personal fault and for defective things. Also a number of specific statutory rules imposing strict liability for clean-up expenses are described. Here the act on toxic waste of 22 July, 1974 is given special attention. The paper describes the legal position of the most likely defendants in a suit brought by the government in order to recover clean-up costs: the operator or former operator of a disposal site, the producer of hazardous waste, and the subsequent owner of land containing waste. The paper concludes by criticising the potential liability of the unsuspecting buyer of land formerly used as a waste-disposal site and which may result from the application of generally accepted principles of tort law. An equitable and efficient allocation system implies that clean-up costs are in the first place borne either by those originally responsible for making the remedial action necessary, or by the operator of the waste-disposal facility, or by the generator of the waste. If it is not possible to allocate the clean-up costs in this way, they should be financed from levies on polluting products or activities.

Tort Damages and the Decline of Fault Liability: Plato Overruled, but Full Marks to Aristotle!

Tort Damages and the Decline of Fault Liability: Plato Overruled, but Full Marks to Aristotle!

Ergonomics and product liability

This article discusses the implications for ergonomists of proposed changes in the civil law on product liability. It also considers the ergonomic approach to the prevention of product liability actions. This is the promotion of consumer safety through safe product design. Safety performance testing and standards are examined in the light of the future requirements of manufacturers. The article is based largely upon a paper entitled “The prevention of product liability actions” read at the CBI Conference, Product Safety and Liability for Defects, held at the Inn on the Park, London, September, 1977.

Builders' Liability for Latent Defects in Used Homes

Builders' Liability for Latent Defects in Used Homes