Dr. Ina Ebert and Nicholas Roenneberg
Developments in European liability law from 2000 to 2005
Even though the unification of European liability law is still far in the future, some common European trends are already discernible. Apart from a number of developments concerning all aspects of liability law, these trends relate primarily to the legal consequences of personal injuries and the ever more important liability for pure economic loss.
In contrast to the US or Australia, where most reforms of tort law are aimed at limiting liability, virtually all reform efforts in Europe seek to extend tort law. This is evident in the codifications of tort law carried out in the last few years (Denmark 2000/2001, Germany and Sweden 2002, Finland, Czech Republic and Poland 2004).
More than anywhere else, however, this tendency is apparent in court decisions, which continue to play a central role in the ongoing development of tort law. Decisions by European courts extended strict liability further and sharpened regulations concerning the expected standard of care and duty of care as well as burden-of-proof rules.
In connection with asbestos decisions, French courts extended employers' liability, which had been limited to wilful acts and grossest negligence (faute inexcusable), to such an extent that it now largely approximates the general principles of liability. Courts in Belgium limited the possibility of considering the contributory fault of persons suffering damages in road traffic to instances in which the claimant intentionally caused the accident.
The amount of damages awarded also rose substantially, due to a dramatic increase of medical treatment expenses, higher caps for strict liability and above all because of a sharp increase in the sums awarded as damages for pain and suffering. Moreover, some states have considerably expanded the number of persons entitled to receive damages for pain and suffering by including relatives of the injured person.
Countertrends: dangerous leisure activities and determination by constitutional law
However, there are also a few countertrends to be considered. For example, court practice limited duty of care standards in cases where a person got injured while practicing some form of dangerous sport or leisure activity (assumption of risk) and considered the failure to take compulsory precautionary measures (seat belts) in road traffic to be contributory negligence. Some states also limited the liability of minors.
Another important trend of recent years is that tort law has increasingly been determined by constitutional law or EU-law. The traditional idea that civil law and public law are separate and distinct has been outmoded for some time now. There is a growing conviction that the state, after setting objectives in public law, must also secure those objectives in civil law by implementing liability for violations of these rules. This is particularly apparent in the broadening of liability for discrimination and violations of personality rights, but is also confirmed by the development of state liability, e.g. the claims of abused children in England against youth authorities who failed to take action even though they knew of the abuse or the proceedings to indemnify disadvantages resulting from the failure of a state to implement EU directives.
Stronger politicisation of liability law, diminished reliance on state-sponsored social security
This development is closely connected to an increasing politicisation of liability law: even actions that are merely undesirable, rather than particularly dangerous, are nowadays subjected to strict liability. The best example for this is the former German government's prohibitive design of the liability of farmers planting genetically modified organisms.
Another trend is the diminishing reliance on social security. In times of limited funding, the goal of providing an all-encompassing welfare network is outmoded even in states that have traditionally placed strong emphasis on social security. However, when social insurance fails to compensate damages suffered by individuals, it becomes increasingly important to make the tortfeasor liable, resulting in a renaissance of tort law. The often existential importance of tort law in cases of personal injury in the US, where millions of people have either too little or no health insurance at all, shows where this may lead to.
Extreme situations
Conversely, extreme situations such as the terrorist attacks in New York, Madrid and London and the numerous natural disasters of the last few years have prompted people to recall the state's function as a provider of care: whenever large numbers of people suffer great loss for which no one can be held liable, the limitations of strict liability and tort law become obvious. Since the victims' insurance coverage in such scenarios is often inadequate, the state has again and again been forced to establish indemnification funds to provide compensation. EU Directive 2004/80/EC extends this concept of protection to all victims of crime.
Lastly, European courts frequently had to weigh the private autonomy of consumers against the responsibility of product manufacturers: When does a product's manufacturer has to protect responsible citizens from endangering themselves by using his obviously dangerous product? For example, a German judge who had eaten Mars candy bars and drunk Coca-Cola every day for years filed a lawsuit claiming that the sugar he had thus consumed had impaired his health. He therefore demanded material indemnification and damages for pain and suffering from the manufacturer of these products. The courts (OLG Düsseldorf VersR 2003, 912; LG Essen NJW 2005, 2713) rejected this because "it can be expected of every consumer ... to inform himself at least minimally about fundamental issues of healthy living" and because the products were not defective. Considering previous decisions by the German Federal Supreme Court and the general development of liability law, however, it seems uncertain whether the courts will maintain this restrained practice.
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