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Welcome to Piotr Machnikowski
The European Group on Tort Law (EGTL) is pleased to announce the  addition of Piotr Machnikowski, Professor at the University of Wrocław, Poland, as its latest member. This decision was made at the Group’s last meeting in October 2015.

Welcome to Ernst Karner
The European Group on Tort Law (EGTL)  is pleased to welcome Ernst Karner, newly appointed Director of the Institute for European Tort Law, as a member. This was decided at the Group's meeting in April 2015.

Prosser Award 
The European Group on Tort Law (EGTL)  is pleased to report that its member, Mike D Green, received the William L. Prosser award in 2015 for ‘outstanding contributions . . .  in scholarship, teaching and service in torts and compensation systems’.

Ongoing Work 
The European Group on Tort Law (EGTL) held its first meeting of the year on 7-9 April 2015. Public Authority Liability (led by Ken Oliphant), The Borderlines of Tort Law: Interaction with Contract Law (led by Miquel Martín-Casals) and Product Liability were on the agenda. The latter is a collaborative project with the Acquis Group and is led by Acquis Group member Piotr Machnikowski).

The Group anticipates the publication (by Intersentia) of the results of its Public Authority Liability project sometime in 2015. More details of the upcoming publication are available here. The Borderlines and Product Liability projects are scheduled for conclusion in 2016.

The last EGTL meeting took place in Wrocław, Poland on 15-17 October 2015, thanks to Machnikowski’s efforts and the generous support of the Polish Narodowe Centrum Nauki.

 

Information on Ongoing Projects

Principles of European Tort Law - Prescription and Time Limits in Tort 

Prescription is a legal institution that prevents P from enforcing an alleged right against D because of the passage of time on the claim. The aim of the project is to explore how (and why) the passage of time on an alleged tort claim affects (and should affect) the claim, the parties (the claimant and defendant) and other parties. The project is jointly funded by the Institute for European Tort Law and the European Centre of Tort and Insurance Law. The results of the studies will be published by the Group's series publisher, Intersentia.

Project Leader:  Israel Gilead and Bjarte Askeland


Contributors

Bjarte Askeland
Ewa Bagińska
Jean-Sébastien Borghetti
Jonathan Cardi
Giovanni Comandé
Eugenia Dacoronia
Isabelle Durant
Michael G Faure
Israel Gilead
Michael D Green
Ernst Karner
Anne LM Keirse
Bernhard A Koch
Piotr Machnikowski
Ulrich Magnus
Miquel Martín-Casals
Johann Neethling
Ken Oliphant
Gert Straetmans
Luboš Tichý
Vibe Ulfbeck
Pierre Widmer
Bénédict Winiger
 

The Liability of Public Authorities in Comparative Perspective

In the last decades, the liability of public authorities has been one of the main focuses of development in tort law in Europe, with major reforms implemented or considered at national level, and a steady stream of major court decisions. During the same period, ´Member State liability´ has also been recognised in the law of the EU, and the interplay of principles of national and EU law - and additionally the ´just satisfaction´ jurisprudence of the European Court of Human Rights - evidently warrants close attention. In this context, the aims of the present study are to contribute to the understanding of the law of extra-contractual liability as it applies to public authorities in the legal systems of Europe (and selected non-European jurisdictions), to facilitate its enhancement where necessary or desirable, and to consider the possibilities for harmonisation in the area - specifically, through the extension and adaptation of the Principles of European Tort Law to cover public authority liability.


Project Leader: Ken Oliphant

Contributors

Bjarte Askeland
Ewa Bagińska
Jonathan Cardi
Giovanni Comandé
Eugenia Dacoronia
Isabelle Durant
Duncan Fairgrieve
Michael G Faure
Israel Gilead
Michael D Green
Anne LM Keirse
Bernhard A Koch
François Lichère
Piotr Machnikowski
Ulrich Magnus
Miquel Martín-Casals
Jef de Mot
Johann Neethling
Luca Nocco
Ken Oliphant
Maria José Reis Rangel de Mesquita
Jordi Ribot
Luboš Tichý
Vibe Ulfbeck
Pierre Widmer
Bénédict Winiger

To be published by Intersentia. More information on the book here.
 

The Borderlines of Tort Law: Interactions with Contract Law

All European legal systems recognise a boundary between the domains of tort and contract. Whereas there have been voices contending that this distinction is no longer valid or, at least, that there should be a unification of the two sets of rules in particular contexts, others claim that there is still a very important distinction to be maintained. In fact the boundary between the two areas is often blurred and whether it is drawn in one place or another varies from country to country, giving rise to the paradox that what is considered a matter of contractual liability in one legal system is governed exclusively by tort law in another.

The project will explore how differences between tort and contract affect the foundations of liability, the nature and amount of the compensation, the extent of liability and whether defences and limitation periods corresponding to the distinct causes of action give rise to substantially different outcomes. It will also analyse to what extent actions in tort and in contract exclude each other and, when this is the case, how their concurrence is organised, and lastly will devote its attention to specific situations such as pre-contractual liability and the liability of professionals.


Project Leader: Miquel Martin-Casals

Contributors

Cristina Amato
Bjarte Askeland
Ewa Bagińska
Jean-Sébastien Borghetti
Giovanni Comandé
Eugenia Dacoronia
Michael G Faure
Israel Gilead
Albert Ruda González
Michael D Green
Jiří Hrádek
Ernst Karner
Anne LM Keirse
Bernhard A Koch
Wenqing Liao
Ulrich Magnus
Miquel Martín-Casals
Johann Neethling
Ken Oliphant
Albert Ruda
Jaap Spier
Luboš Tichý
Vibe Ulfbeck
Pierre Widmer
Vanessa Wilcox
Bénédict Winiger

To be published by Intersentia. More information on the book here.


Product Liability

Members of the European Group on Tort Law (EGTL) together with members of the Research Group on EU Private Law (Acquis Group) and its guests will participate in a project entitled ‘Product Liability Law in EU and in National Laws and the Development of New Technologies’ financed by the Polish Narodowe Centrum Nauki. The primary aim of the project is to determine whether the regulation presently in force in European Union (EU) Member States (concerning liability for loss caused by defective products, as implemented under Council Directive of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (85/374/EEC)), remains, after almost thirty years, an adequate legal response to the phenomenon of products brought to market that fail to ensure appropriate levels of safety for their users. The primary argument in favour of undertaking a thorough review of the current regulation’s timeliness is the dynamic growth of new technologies, which is a phenomenon characteristic of the last decade and one supposed to be an engine of growth for the EU in the coming years. Indeed, we are currently witnesses to the dynamic development of technology in various spheres of life. Above all, mention should be made of such new phenomena as regenerative medicines, nano-technology, cloud computing, new computing devices like interactive digital eyewear, contour crafting, and autonomous technologies (eg, self-configuring systems, adaptable machines, intelligent transport devices). Introduced into everyday use, they have either begun to exert their influence on the day-to-day lives of people or will do so in the near future, carrying not only benefits but also dangers for their users. It is thus vital to assess if the current, harmonised regime on product liability – especially the concept of the product, the defect test, the development risk defence and the principle of strict liability – ensures safety for users of new technologies on the one hand and does not restrict its progress on the other. Furthermore, it is advisable to examine if cases in which the current liability regulation fails to cover the particular risks associated with new technologies are encompassed by other, non-harmonised domestic tort law regimes.

The project has two primary aims. The first is to explore the manner in which the Directive on the liability for defective products has been implemented into domestic law, with special focus on the relation between the rules of this liability and other rules of tort law. This concerns two types of relations. The first plane of coexistence for European and domestic law can be found where particular aspects of product liability are not regulated in the Directive, but are left to domestic law (this especially concerns the notion of damage, causal link, and some particular issues of limitation). The second plane is the relation between the liability regime as set forth in the Directive and other such grounds of liability present in domestic law for harm caused by bringing insufficiently safe products to market, both under tort and contract law regimes. The second, and potentially more important, aim of the project is to determine if European law will ensure sufficient safety for individuals using the goods produced by applying technologies currently under development. If it is determined that European law does not ensure the required level of protection for those making use of new technologies, it will then be necessary to consider if such protection is provided by other domestic regulations, and if the Directive should be amended in order to adapt it to new challenges.

Project Leader: Piotr Machnikowski

Contributors

Marie-Eve Arbour
Bjarte Askeland
Ewa Bagińska
Jean-Sébastien Borghetti
Giovanni Comandé
Eugenia Dacoronia
Duncan Fairgrieve
Michael G Faure
Israel Gilead
Michael D Green
Geraint Howells
Anne LM Keirse
Bernhard A Koch
Ulrich Magnus
Miquel Martín-Casals
Peter Møgelvang-Hansen
Johann Neethling
Ken Oliphant
Reiner Schulze
Josep Solé Feliu
Gert Straetmans
Luboš Tichý
Vibe Ulfbeck
Pierre Widmer
Vanessa Wilcox
Bénédict Winiger

 

 

New publication

The EGTL is pleased to announce the publication of I Gilead/MD Green/BA KochProportional Liability: Analytical and Comparative Perspectives (2013) (ISBN 978-3-11-028253-5). The book addresses why, how and in what situations rules of proportional liability can promote the goals of tort law.

 
The European Principles of Tort Law in the European case law
 

Several Supreme Courts around the world have started quoting or refering to the European Principles on Tort Law in their decisions. Here you can find some examples. Please if you know others, don't hesitate to contact us and we will add them to the list below.

Portugal
  • Acórdão do Supremo Tribunal de Justiça - [Decision of the Supreme Court]
Date: 22nd October 2009.
Chamber: 2nd.
Judges: João Bernardo (reporting Judge).
Oliveira Rocha.
Oliveira Vasconcelos.
Pedro Octavio Munar Cadena.
Arturo Solarte Rodríguez.
César Julio Valencia Copete.
Topics: Causation.
Loss of a chance ("perda da chance").
Proof of damage.
PETL Articles used: Art. 3:101. Conditio sine qua non.
Art. 2:105. Proof of damage.
Available from: Ministério da Justiça.
Publication reference: Not available.

Spain
  • Sentencia del Tribunal Supremo - [Decision of the Supreme Court]
Date: 6th March 2007.
Chamber: 1st (Civil Chamber).
Judges: Encarnación Roca Trias (reporting Judge).
Topics: Liability of a Bank.
PETL Articles used: Art. 6:102. Liability for auxiliaries.
Available from: Westlaw.
Publication reference: RJ 2007/1828
  • Sentencia del Tribunal Supremo - [Decision of the Supreme Court]
Date: 10th October 2007.
Chamber: 1st (Civil Chamber).
Judges: Ignacio Sierra Gil de la Cuesta (reporting Judge).
Topics: Liability of a sports club.
PETL Articles used: Art. 6:102. Liability for auxiliaries.
Available from: Westlaw.
Publication reference: RJ 2007/6813
  • Sentencia del Tribunal Supremo - [Decision of the Supreme Court]
Date: 21st November 2008.
Chamber: 1st (Civil Chamber).
Judges: José Antonio Seijas Quintana (reporting Judge).
Topics: Liability of the seller of a toxic product.
PETL Articles used: Art. 4:102 (1). Required standard of conduct.
Available from: Westlaw.
Publication reference: RJ 2009/144
  • Sentencia del Tribunal Supremo - [Decision of the Supreme Court]
Date: 2nd March 2009.
Chamber: 1st (Civil Chamber).
Judges: Juan Antonio Xiol Ríos (reporting Judge).
José Almagro Nosete (dissenting opinion).
Other names not available.
Topics: Liability of the Land Register official.
Scope of Liability.
PETL Articles used: Art. 3:201. Scope of Liability.
Available from: Westlaw.
Publication reference: RJ 2009/3287

Apart from the above, the PETL have also been quoted in: 


Colombia
  • Corte Suprema de Justicia - [Supreme Court of Colombia]
Date: 24th August 2009.
Chamber: Civil Chamber (Sala de Casación Civil).
Judges: William Namén Vargas (reporting Judge).
Jaime Alberto Arrubla Paucar.
Ruth Marina Díaz Rueda.
Pedro Octavio Munar Cadena.
Arturo Solarte Rodríguez.
César Julio Valencia Copete.
Topics: Motor vehicle accident.
PETL Articles used: Art. 1:101. Basic Norm.
Art. 4:102 (1). Required standard of conduct.
Art. 5:101. Abnormally dangerous activities.
Available from: Derecho de la responsabilidadFasecolda. Boletín de novedades no. 35-2009, pages 4-65.
Publication reference: Not available.

Israel
  • Beit HaMishpat HaElyon, בית המשפט העליון [Supreme Court of Israel] 
Date: 31st March 2005.
Chamber: Civil Appeal.
Name of the case: Carmel Haifa Hospital et al v. Malul et al.
Decision number: 7375/02.
Judges: Not available.
Topics: Medical malpractice.
Causation.
Causal uncertainty.
Proportional liability.
PETL Articles used: ---
Available from: Not available.
Publication reference: PD 60(1) 11 (2005).
  • Beit HaMishpat HaElyon, בית המשפט העליון [Supreme Court of Israel] 
Date: 29th August 2010.
Chamber: Civil Rehearing.
Name of the case: Carmel Haifa Hospital v. Malul.
Decision number: 4693/05.
Judges: Miriam Naor.
Elyakim Rubinstein.
Topics: Medical malpractice.
Causation.
Causal uncertainty.
Proportional liability.
Loss of a chance.
PETL Articles used: Art. 3:102. Concurrent causes.
Art. 3:103. Alternative causes.
Art. 3:104. Potential causes.
Art. 3:105. Uncertain partial causation.
Art. 3:106. Uncertain causes within the victim's sphere.
Available from: Not available.
Publication reference: Not available.

 

  • Comment on these two cases by EGTL member Israel Gilead
A long awaited decision of Israel's Supreme Court (SC) on "proportional liability"(PL) was published today (29/8/10) (in Hebrew). A special panel of 9 Justices reconsidered its former 2005 decision (3 Justices), and by a slim majority of 5 to 4 overruled it.

Unfortunately, although this new decision does clear one kind of uncertainty as to whether a "pure" rule of PL applies in Israeli law and to what extent, it raises another kind of similar uncertainty.

The case (Malul): A child (P) was born with severe brain damage (PLV). It was more probable than not, that the damage was caused by her premature birth (for which no one was liable). Yet, it was also probable (20%) that the damage was caused by medical negligence (delay of a Caesarian Section).

The 2005 decision - The Malul rule. The SC ruled that the defendant hospital (D) is liable for a portion of P's losswhich corresponds with the probability that the damage was caused by D's negligence. It accordingly ordered D to pay for 20% of P's damage.

Unanswered questions. Obviously, in this decision the SC embraced a "pure" rule of PL. The Malul rule allows, in cases of causal uncertainty where it is more likely than not that D did not cause P's harm, to impose PL on D according to the (lessthan 50%) probability that D caused the harm.
But what are the limits of the Malul rule? Without limits such a rule threatens to transform private law from regime of liability based on causation to liability based on (materialized) risk creation. Does the rule apply to all medical negligence cases? To all tort cases? To all private law claims? And why not to public law and criminal law cases? The decision provided no real answers. The limits set by the court on the Malul rule were few, "open" and amorphous. One such limits required the causal uncertainty to be structural, "built-in"uncertainty without explaing what it means. The other limit was that PL is to be imposed only if justice so requires.
Another unanswered question was whether the Malul PL rule only benefits Ps (who get less than 50% rather than nothing) or also operates to their detriment (reducing their award below 100% when established probability is between 100% and 51%).
These unanswered questions led to a decision to reconsider the Malul rule by an extended panel.

Today's decision. While 4 Justices supported the Malul rule, the majority of 5 Justices overturned it, holding that hospital D is not liable to P for any part of P's damage. The major reason was the revolutionary nature of the Malul rule and its far-reaching implications.
The majority was unconvinced by the minority attempt to "improve" the Malul rule by introducing more limits that would make it less "open" and less revolutionary (namely, to apply it only: (a) in bodily injury cases; (b)in tort cases; (c)for the benefit of Ps but not to their detriment; (d) where the risk is significant; (e) mostly in cases of "scientific" uncertainty).

The "recurrent-bias rule". 3 of the 5 majority Justicesdid however endorse a new rule of PL characterized as "the recurrent-bias rule" )RBR(. Under this rule PL should be allowed when D's activity/ies expose a group of Ps to risk, and that risk is systematically either below 50% or above 50%. An "all or nothing rule" in such circumstances, it was argued, leads to unjust and inefficient results (over or under-deterrence), while the "recurrent-bias" rule does much better. It was suggested that the RBR should be applied not just for the benefit of Ps (when probability is systematically below 50%) but also to their detriment (when probability is systematically between 51% and 100%).
It was also argued that the "market share liability" cases (Sindell), and mass torts cases (like Agent Orange), are actually applications of the RBR rule.

New uncertainties. The new RBR was endorsed by only 3 Justices. 2 opposed it and 3 left it for future consideration. So while the Malul rule cloud of uncertainty dispersed, the RBR clouds are now gathering. Does RBR apply? In which cases? In what ways?

Lost chances of Healing. Interestingly, the Justice proposing the RBR was in favor of abolishing the doctrine of "Lost chances of Healing". He argued that this doctrine is actually a rule of PL which does not fit into the new RBR. However, all the other Justices opposed it, leaving this decades-old doctrine intact.

Principles of European Tort Law. Both the Malul camp and the RBR camp relied on the adoption of PL by the Principles of European Tort Law (PETL, 2005), citing Sections 3:103 and 3:106.


Israel Gilead
Hebrew University of Jerusalem

 

 

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