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List of Cases
- Edited by Tomas Arons, Universiteit Utrecht, The Netherlands, Rianka Rijnhout
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- Mass Harm in Europe
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Mass Harm in Europe
- Compensation and Civil Procedures
- Edited by Tomas Arons, Rianka Rijnhout
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This book comprises an in-depth and broad comparative law study on the meaning of tort law in mass harm cases in Europe, examining this phenomenon in the context of twelve different case studies in twelve European jurisdictions: Belgium, England and Wales, France, Germany, Greece, Ireland, Italy, Poland, Slovenia, Spain and the Netherlands. To meet the objectives of this analysis, this book's scope is not limited to an analysis of substantive tort law only, but also includes procedural law aspects and the shift of compensation beyond tort law. It marks a novelty in the common core tradition by mapping out procedural (im)possibilities of damages recovery in mass harm cases, thereby giving a clearer picture of what tort law can de facto mean in mass harm cases. Included are four general contributions that provide more context on the settlement of these types of mass harm cases. These contributions cover the role of the judge; mass harm from a law and economics perspective; alternative compensation schemes; and funding class actions. Overall, this book represents the first study to provide such a broad and comprehensive overview of what is likely to be the common core in the settlement of mass harm cases through private law in Europe.
Case 10: Damage To Environment and Fear of a Future Illness
- Edited by Tomas Arons, Universiteit Utrecht, The Netherlands, Rianka Rijnhout
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Summary
CASE
A fire at a chemical factory caused an ecological disaster: tons of toxic chemicals are released into in a river and cause the spread of poisonous fumes. Residents were told by government officials to stay indoors. Several people, who inhaled the fumes, were treated at hospital. They were not to blame for inhaling the fumes. They did not contract an illness, disorder or suffer injury, but a risk exists that they will get ill in the future. The local environment suffered severely from the toxic spill. Plants, fish and other organisms died or became ill. Research showed that the factory infringed the licensing requirements regarding the destroying of the chemical substances.
A group of those who inhaled the fumes demand compensation from the factory out of fear of becoming ill in the future. In addition, an environmental organisation files a claim for compensation for damage caused to the environment as such. Will they receive compensation and, if so, for what losses? And is it possible to start a collective proceeding? If so, please indicate the most important bottlenecks in this particular case.
DISCUSSIONS
AUSTRIA
Matthias Dangl and Georg E Kodek
Operative Rules
As the people who inhaled the fumes have not suffered any health damages yet, there is no basis to demand compensation. However, they can bring a declaratory action in order to determine the liability of the factory for future damages (§ 228 ACCP). Since claims for declaratory judgments cannot be assigned under Austrian case law, there is no possibility for the Austrian model of class action.
As far as the environmental damage is concerned, the case is dealt with by public law (Bundes-Umwelthaft ungsgesetz).
Legal Formants
Bringing a declaratory action is necessary to prevent the claims from becoming time barred. Furthermore, it helps to avoid difficulties in providing evidence at a later stage.
The district administrative authority will place the factory under an obligation to take redevelopment measures. Environmental organisations are entitled to request the authority to take action (§ 11 para 1 of the Bundes-Umwelthaft ungsgesetz).
BELGIUM
Artuur Keukeleire, Larissa Vanhooff and Britt Weyts
Operative Rules
The compensation that ‘victims’ of the toxic fumes could demand is so-called fear damage, based on the fault-based general tort law.
Mass Harm in European Private Law: An Introduction
- Edited by Tomas Arons, Universiteit Utrecht, The Netherlands, Rianka Rijnhout
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Summary
INTRODUCTION
This Common Core project on mass harm in European private law started in 2019. A number of scholars from this network signalled that mass harm is handled differently in different jurisdictions, both in terms of the application and tenacity of substantive tort law and in terms of procedure. They also signalled that in some cases the solution was sought outside tort law. Moreover, there was a perception that mass harm was handled differently in personal injury, property damage and pure economic loss cases. Finally, there was some movement at the European level.
These academics noted that there was not yet a comparative law project looking for the common core in Europe private law in mass harm cases. In particular, a project with a broad scope, bringing together substantive, procedural and non-tort law aspects, was missing. This Common Core project on mass harm aims to fill this gap. The aim of this project is to understand how substantive tort law responds in mass harm situations. As this response is also largely determined by procedural options for bringing a case, procedural law is also discussed in detail. Because we know that in some mass harm cases, compensation is not or cannot be offered through tort law, and because we realise that civil law is sometimes de facto inaccessible due to the large-scale nature of the damage, we chose to also reflect on the shift in compensation options beyond tort law. In essence, this approach allows us to analyse what factual and legal possibilities and impossibilities exist to receive compensation for mass harm through substantive tort law, and what triggers exist to seek other compensation options. This book is the result of that project and was completed in December 2022.
This first chapter aims to introduce this research project. In section 2 , we will start by presenting the state of the art about compensation for mass harm, and we will focus on the state of the art in terms of procedural aspects and solutions outside tort law. More in-depth analysis and substantive law are covered in the case studies. As no rapporteur from a Scandinavian country participated in this project, we will focus in section 3 on what is known about these systems in mass harm cases.
Preface
- Edited by Tomas Arons, Universiteit Utrecht, The Netherlands, Rianka Rijnhout
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Summary
This book adds an in-depth and broad comparative law study on the meaning of tort law in mass harm cases in Europe. It examines this phenomenon based on 12 diff erent case studies in 12 European jurisdictions. Because of the objectives of this study, we did not limit ourselves to only an analysis of substantive tort law, but also included procedural law aspects. This also marks a novelty in the Common Core tradition: procedural (im)possibilities of damage recovery in mass harm cases have also been mapped out. As such, it gives a clearer picture of what tort law can de facto mean in mass harm cases. In addition, four general chapters have been included in the study that provide more context to the settlement of this type of mass harm cases. Overall, this is the first study to provide such a broad and comprehensive overview of what is likely to be the common core in the settlement of mass harm cases through private law in Europe.
A comprehensive comparative law study with so many contributors always takes a reasonable amount of time. For this project, we faced working during the global COVID-19 pandemic. In December 2019, we discussed the first version of the questionnaire with members of the tort law group in Trento. In 2020, 2021 and 2022, we were faced with lockdowns, additional teaching load relating to those lockdowns and the impossibility of physically meeting each other. We adjusted the project management accordingly. The questionnaire was answered in four parts by the contributors and we met online – during several meetings on Friday afternoons – to go through and compare the answers. To this day, this group of researchers has not physically met. Nevertheless, there was energy and enthusiasm in the group, and we enjoyed the glimpses into each other‘s working or private environments, which also gave this project a certain charm.
We would like to thank all contributors for all their enthusiasm, hard work, commitment and flexibility! We are grateful to Marte Infantino for her constant willingness to help think about the project throughout its duration.
Case 8: Noise
- Edited by Tomas Arons, Universiteit Utrecht, The Netherlands, Rianka Rijnhout
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Summary
CASE
Residents of a town complain about the noise from a highway nearby. Research shows that the actual noise level severely exceeds the maximum permitted noise level. The state did not take measures to reduce the level of noise. Residents have not sustained personal injury as a consequence of the exceeding of the maximum level of noise.
Residents do complain that they lost enjoyment of living in the area. Will they receive compensation from the state and, if so, for what losses? And is it possible for them to start a collective proceeding? If so, please indicate the most important bottlenecks in this particular case.
DISCUSSIONS
AUSTRIA
Matthias Dangl and Georg E Kodek
Operative Rules
If emissions (such as noise) are caused by a duly licensed facility, residents are in principle entitled to demand compensation for damages (§ 364a ACC). However, the Austrian Supreme Court ruled that the government is not liable for damages caused by traffic on a highway under this provision because the usage of the highway is a matter of public law. Similarly, the Austrian Supreme Court has held that less stringent standards apply in the case of operations in the public interest such as a tram. Apart from that, there is no compensation for nonmaterial damages (lost enjoyment of living in the area) under § 364a ACC in general.
Therefore, a collective action, such as the ‘Austrian model of group litigation’ , is unlikely to be successful.
Legal Formants
According to a recent decision of the Austrian Supreme Court, official liability would not be a suitable basis for a claim either. It was ruled that the Official Liability Act (Amtshaft ungsgesetz) offers no basis for the request that the state, as the road operator, should take certain measures (such as speed controls and the construction of noise protection walls) in order to reduce the noise emissions from the road to the plaintiff’s neighbouring property.
BELGIUM
Artuur Keukeleire, Larissa Vanhooff and Britt Weyts
Operative Rules
Victims can rely on four different sources of compensation for noise pollution: (1) general tort law; (2) property law; (3) protection of privacy; and (4) administrative liability. However, the actual success rate of these actions is dubious.
Case 7: Unfair Competition and Unfair Commercial Practises
- Edited by Tomas Arons, Universiteit Utrecht, The Netherlands, Rianka Rijnhout
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Summary
CASE
Companies B, C and D signed an agreement to co-ordinate the pricing of their products. The general public was not informed of this. The European Commission decided that the cartel violated EU competition law and fined company B, C and D. The European Court of Justice upheld this decision.
Direct consumers of these companies want to recover their losses incurred as a result of the higher price they paid for the products sold by company B. The consumers did not resell the product to third parties, so company B cannot put forward a passing-on defence. They all demand compensation from company B. Will they receive compensation? The competitors of companies B, C and D who were not part of this cartel also demand compensation for their foregone profits as a result of this pricing policy from company B. Will they receive compensation and, if so, for what losses? And is it possible to start a collective proceeding? If so, please indicate the most important bottlenecks in this particular case.
Joint and several liability is not needed in your answer, unless it is the main obstacle to a claim; if so, please mention that briefly.
DISCUSSIONS
AUSTRIA
Matthias Dangl and Georg E Kodek
Operative Rules
The consumers will receive compensation under general tort law (§ § 1311 in conjunction with 1293 ff ACC). The action is based on the violation of Article 101 of the Treaty on the Functioning of the European Union.
The competitors could also demand damages they suffered as a result of a cartel. Based on the facts of the case, it is not clear to us what kind of losses they could have in mind. A more realistic scenario would be that the cartel members fixed prices at a very low level to squeeze their competitors from the market. In that case, the competitors would be entitled to damages. However, it is hard to imagine a case where both consumers and competitors suffer a loss.
A collective action (as described in the Austrian section in the procedural rules chapter) would be possible.
Legal Formants
By ‘passing on’ the loss to the consumers, the losses become infinitesimal (atomised).
Summary And Conclusions
- Edited by Tomas Arons, Universiteit Utrecht, The Netherlands, Rianka Rijnhout
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Summary
INTRODUCTION
The overarching aim of this Common Core project on mass harm is to understand how tort law responds in mass harm situations. As this response is also largely determined by procedural options for bringing a case, procedural law was also discussed in detail. Because we know that in some mass harm cases, compensation is not or cannot be offered through tort law, and because we realise that civil law is sometimes de facto inaccessible due to the large-scale nature of the damage, we chose to also reflect on the shift in compensation options beyond tort law. In essence, this approach allows us to analyse what factual and legal (im)possibilities exist in terms of receiving compensation for mass harm through tort law, and what triggers exist to seek an alternative compensation option. Therefore, this Common Core project on mass harm in European private law offers a broad study into the common core of substantive tort law and civil procedural law in mass harm cases and into compensation within or outside tort law. This project involves not only private law, but also its context, history and political choices. That ecosystem is sometimes discussed implicitly and sometimes very explicitly by the rapporteurs and the general contributors in order to also better understand the reasons for these differences and similarities, and reflect on its justifications.
This last chapter aims to reflect – in a broad sense – of the differences and similarities between jurisdictions and types of mass harm cases. It will do so by using two perspectives. The first perspective concerns that of legal solutions: substantive tort law outcomes or options, procedural choices made in a jurisdiction and systemic solutions to compensation beyond tort law (section 2). The second perspective concerns the type of loss cases (personal injury, property damage or pure economic loss) (section 3). To finalise this project, the concluding section will draw some general conclusions about how tort law responds in mass harm situations (section 4).
Case 4: Damage To Property Caused By a Natural Disaster
- Edited by Tomas Arons, Universiteit Utrecht, The Netherlands, Rianka Rijnhout
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Summary
CASE
Earthquakes occur historically in a specific region. They are not life-threatening; however, the earthquakes damage the foundations of houses and cause cracks in the walls.
A group of owners of private houses demand compensation from the state. Will they receive compensation and, if so, for what losses? And is it possible to start a collective proceeding? If so, please indicate the most important bottlenecks in this particular case. Would it make a difference if the earthquakes did not occur historically, but are the result of mining activities in the region?
DISCUSSIONS
AUSTRIA
Matthias Dangl and Georg E Kodek
Operative Rules
To assert official liability it is necessary to prove that the local authority acted negligently by designating the plots as building land in the zoning plan or by granting building permits for the houses.
Apart from a potential official liability, the homeowner’s policy will usually cover the loss (partially). However, homeowners are not obliged to conclude such a policy. Furthermore, the Austrian legislator created a special fund (Katastrophenfonds) to provide compensation for damages caused by natural disasters. However, according to the federal states’ guidelines, there is no legal entitlement to receive money from this fund.
If the earthquake was caused by a mining company, claims for damages could be brought under the general tort provision of § 1295 para 1 ACC.
A collective action (as described in the Austrian section in the procedural rules chapter) would be possible.
Legal Formants
The Austrian Supreme Court confirmed official liability in the context of flood damages. It was ruled that the municipality was obliged to make flood run-off areas visible in the zoning plan. In another case official liability was confirmed because of culpable non-clarification of the flood hazard in the building permission process.
If the earthquake was caused by a mining company, claims for damages could be brought under the general tort provision of § 1295 para 1 ACC. In this case there would also be detailed conditions imposed by the administrative authorities as to what safety precautions have to be taken by the mining company. In the event that these precautions imposed by the authorities are inadequate, official liability could also be established if the authorities acted negligently.
PART II - Methodology, Procedural Rules and Case Studies
- Edited by Tomas Arons, Universiteit Utrecht, The Netherlands, Rianka Rijnhout
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Case 2: Occupational Disease
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Summary
CASE
A group of painters, who all worked for the same employer, suffer from nasal cancer probably caused by working with harmful substances in paint. These harmful substances were present in paint between 1970 and 1989. Although the employer knew about the detrimental health effects, he did not take adequate preventive measures. The health effect of this exposure took many years to develop into an illness. After 30 years, the first painter was diagnosed with this type of cancer.
A group of workers suffering from that particular type of cancer demand compensation from their former employer. Will they receive compensation and, if so, for what losses? Is it possible to start a collective proceeding? If so, please indicate the most important bottlenecks in this particular case.
DISCUSSIONS
AUSTRIA
Matthias Dangl and Georg E Kodek
Operative Rules
Under Austrian tort law, the employer’s liability faces two difficulties in this case. First, the employer is only obliged to compensate an insured person for damage caused by a bodily injury as a result of an occupational disease if he intentionally caused the occupational disease (§ 333 para 1 of the General Social Security Code). In our opinion it is highly questionable whether intention can be affirmed in this case. Second, claims for compensation are subject to a limitation period of 30 years (§ 1489 ACC).
In any case, the employees are entitled to receive non-pecuniary benefits (such as curative treatment and rehabilitation) as well as payments (such as a disability pension) from the social security system in the event of an occupational disease.
A collective action (as described in the Austrian section in the procedural rules chapter) would be possible.
Legal Formants
The rationale behind the rule on intentionally causing the occupational disease (§ 333 para 1 of the General Social Security Code) is that employers pay the premiums for their employees’ accident insurance. In return, they are privileged in terms of liability vis-à-vis the employees. Although the employer knew that the substances had detrimental health effects, it is by no means certain that he acted intentionally as to the injury.
List of Abbreviations
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Indix
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Case 12: Climate Change
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Summary
CASE
A government meets the EU target of 20% reduction of greenhouse gases before the end of 2025 compared to the emission level in 1990. However, it has been stated in scientific research that the minimum reduction should be 25% compared to the 1990 level in order to have a 50–66% chance of staying below a 2°C increase in global temperatures by 2100 compared to the average temperature in 1800. Scientific research showed that this 2°C maximum increase is necessary to prevent a climate crisis; however, more recent scientific research shows that the preventions of a climate crisis requires a maximum temperature rise of only 1.5°C, which thus reduces the carbon budget that remains in order to prevent a climate crisis in the future.
A group of inhabitants go to court and ask for an injunction or court order requiring the government to reduce its emission of greenhouse gases by 25% at the end of 2025 compared to its emission level in 1990. The motivation behind this court order is the real threat of the violation of positive obligations by the state/government under Article 2 and/or 8 of the European Convention on Human Rights and/or that the due standard of care will be breached. Would the application succeed ?
DISCUSSIONS
AUSTRIA
Matthias Dangl and Georg E Kodek
I. Operative Rules
Under Austrian law, no injunctive relief would be available. The most important reason is that the relevant international conventions and EU goals are not selfexecuting and/or do not provide sufficiently identifiable enforceable standards. There is a Climate Protection Law (Klimaschutzgesetz), but this in essence only programmatically refers to future negotiations.
Legal Formants
The connection between climate change and human rights is too slim to warrant enforceable rights to specific measures. In the absence of sufficiently identifiable standards, the question of which measures have to be taken to stop the climate change is not justiciable. Certainly, it is not justiciable in private law, otherwise, extreme consequences would result. As such, tourists could be sued for causing pollution by ‘unnecessary travels’
Case 9: Terrorism
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Summary
CASE
Terrorist Z used an explosive device at the Christmas market in a large city. He and 24 other people died. In addition, over 600 people were injured and others, including firefighters, emergency care personnel and policemen (professionals), suffered psychiatric harm due to the trauma of seeing dead and severely injured bodies. Family members of the deceased – some of them not present at the Christmas market – saw pictures in the newspapers and online of the horrific attack.
The victims, professionals, bystanders and family members demand compensation from the government. Will they receive compensation and, if so, for what losses? Would your answer be different when the terrorist survives the attack and the victims, bystanders and family members demand compensation from the terrorist? And is it possible to start a collective proceeding? If so, please indicate the most important bottlenecks in this particular case.
DISCUSSIONS
AUSTRIA
Matthias Dangl and Georg E Kodek
Operative Rules
Generally, there is no claim against the government unless government authorities acted negligently (Official Liability Act (Amtshaft ungsgesetz)). The facts of the case do not contain any indications of any misconduct on the part of the authorities.
A claim can also be brought against the terrorist (or their heirs) under general tort law (§ § 1293 ff ACC). The direct victims of a crime can claim compensation for costs of treatment and a lump sum for pain and suffering (Verbrechensopfergesetz).
A fund for a specific terrorist attack in Austria has been set up by the Austrian government in the past.
A collective action against the government or the terrorist (as described in the Austrian section in the procedural rules chapter) would be possible.
Legal Formants
Currently there are several cases pending in Austria in the aftermath of the terrorist shooting in Vienna on 2 November 2020 alleging that the authorities neglected relevant information about the terrorist (including, inter alia, that he tried to buy ammunition in Bratislava) in advance (§ § 1 ff of the Public Liability Act). Official liability requires an unlawful and culpable action of an authority in the execution of the law. The claim can also be based on an omission if the authority was obliged to take action and dutiful action would have prevented the damage.
Preliminary Remarks on the Methodology
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Summary
THE AIMS AND METHOD OF THE STUDY
The aim of this Common Core project on mass harm is to understand how substantive tort law – and sometimes contract law – responds in mass harm situations. As this response is also largely determined by procedural options for bringing a case, procedural law is also discussed in detail. Because we know that in some mass harm cases, compensation is not or cannot be offered through tort law, and because we realise that civil law is sometimes de facto inaccessible due to the large-scale nature of the damage, we chose to also reflect on the shift in compensation options beyond tort law. In essence, this approach allows us to analyse the factual and legal possibilities and impossibilities that exist to receive compensation for mass harm through tort law, and what triggers are present to seek an alternative compensation option. In doing so, we distinguish between different types of harms (e.g. personal injury, property damage and pure economic loss) and between different types of claimants (e.g. consumers, shareholders and foundations) and addressed parties (e.g. public authorities, companies and individuals). This approach allows for a detailed analysis on a possible common core regarding the settlement of mass harm through tort law in European private law. This analysis also makes it possible to evaluate whether the settlement of mass harm claims in European private law de facto leads to the outcomes intended, or whether there are more structural shortcomings in the protection of plaintiffs.
This project was carried out within the Tort Law group of the Common Core of European Private Law. The Common Core has an established methodology. Based on a questionnaire containing 12 actual mass harm cases, rapporteurs from 12 European jurisdictions provided insight into how the case in question is taken up in their jurisdiction in the context of tort (and sometimes contract) law. In doing so, we asked them to answer these cases in the light of legislation, case law and trends within their own jurisdictions, on the one hand, and to consider litigation options for collective actions or proceedings and a possible shift of compensation outside tort law, on the other hand. The jurisdictions covered are: Austria, Belgium, England and Wales, France, Germany, Greece, Ireland, Italy, Poland, Slovenia, Spain and the Netherlands.
Frontmatter
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Case 5: Product Liability
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Summary
CASE
In 2020, a producer of an electric bike recalls the units of its product made between 2012 and 2015. After the bike was placed on the market by the producer, it became apparent that the battery could explode when it was not being used. Upon closer examination by the producer, it became clear that there was a safety defect due to battery design failures. No consumers suffered personal injury, but explosions caused damage to other private property of theirs. Research showed that the battery was already unsafe in 2012, when it was placed onto the market by the producer. The producer knew or could have known about this defect. Therefore, the producer cannot put forward the (European) state of the art defence.
A group of consumers whose batteries exploded and consequently lost other possessions such as garden chairs demand compensation from the producer. Will they receive compensation and, if so, for what losses? And is it possible to start a collective proceeding? If so, please indicate the most important bottlenecks in this particular case.
DISCUSSIONS
AUSTRIA
Matthias Dangl and Georg E Kodek
Operative Rules
Austria has implemented the Product Liability Directive into domestic law by way of the Produkthaft ungsgesetz (PHG). In this case, claims could be based on this statute. However, there is a €500 deductible for harm to things (as opposed to personal injury).
In order to avoid this deductible, the claim could be based on general tort law (§ § 1293 ff Allgemeines Bürgerliches Gesetzbuch (Austrian Civil Code) – ACC). The argument would then be that the contract between the producer and the retailer also entails duties of care vis-a-vis the customers. As opposed to claims based on the PHG, fault of the producer has to be proven. As the producer knew or could have known about the defect, it seems possible to prove the producer’s fault in this case. Also, all claimants, of course, have to prove that they suffered a loss because of an explosion of the battery.
A collective action (as described in the Austrian section in the procedural rules chapter) would be possible.
Case 1: An Epidemic
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Summary
CASE
In a particular period of time, a disease, query fever, spread through the population. Query fever is known to spread from goats to humans by direct contact, or by contact with contaminated dust in the air. Farmers were under a statutory duty to vaccine their goats, but some of them did not. Many people fell ill, and a large group (> 1,000) developed chronic query fever and lost the capacity to work full time and therefore suffered loss of income. It is uncertain whether the government is liable because although ample evidence exists that it did not take preventive measures by adequate vaccine enforcement, it is uncertain whether those measures would have prevented the epidemic.
A group of plaintiffs suffering from chronic query fever demand compensation from both the government and the goat farmers. Will they receive compensation and, if so, for what losses? And is it possible to start a collective proceeding? If so, please indicate the most important bottlenecks in this particular case.
Please also indicate briefly in the ‘meta-legal formants’ if one or more compensation schemes have been developed that fully or partly compensate the victims of COVID-19.
DISCUSSIONS
AUSTRIA
Matthias Dangl and Georg E Kodek
Operative Rules
It would be possible to bring an action against the government based on the Public Liability Act (Amtshaftungsgesetz) as well as against the farmers based on general tort law (§ § 1293 ff Austrian Civil Code (ACC)). It would also be possible to start a collective proceeding, such as the ‘Austrian model of group litigation’ (as described in the Austrian section in the procedural rules chapter).
However, the case poses two difficulties from a substantive law perspective. The first difficulty for claimants is to prove causation. It is not clear whether a particular farmer’s failure to have his goats vaccinated caused a particular plaintiff to contract the disease, nor is it clear that stricter vaccine enforcement had prevented the epidemic. The second difficulty for plaintiffs, both for their case against the government and against the farmers, is the purpose of the statute requiring all goats to be vaccinated.
PART I - Introductory Matters
- Edited by Tomas Arons, Universiteit Utrecht, The Netherlands, Rianka Rijnhout
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- Book:
- Mass Harm in Europe
- Published by:
- Intersentia
- Published online:
- 03 April 2024
- Print publication:
- 27 October 2023, pp 1-2
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- Chapter
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