Band 15, Heft 3

The heavy stamp that financial supervision law has come to put on the regulation of the financial sector has made the relationship between public and private law in this domain increasingly complex. The most pressing question in theory and practice in this respect is to what extent financial supervision law has a knock-on effect in civil law. This contribution discusses the effects of financial supervision law on civil liability law and distinguishes three types of knock-on effect: (i) financial supervision law itself contains rules of civil liability law; (ii) the knock-on effect of financial supervision law through national civil liability law; (iii) EU financial supervision law, whether or not, in combination with the EU effectiveness principle and the EU principle of legal certainty, imposes certain preconditions on national civil liability law.

The tort or civil liability system plays an important role in the global economic landscape, affecting the lives of individuals and organisations by requiring transfers of money to injured persons as damages. Rooted in the principle of full compensation, the objective is to make injured persons whole again. However, quantifying non-pecuniary damages, the aim of which is the compensation of non-economic losses, presents significant challenges due to their lack of market prices. Consequently, various approaches have emerged, proposing different degrees of admixture of formalised guidance for adjudicators and room for discretion. Drawing also on qualitative interviews with adjudicators from Belgium, Ireland, Italy, and Sweden, this article argues for the standardisation of non-pecuniary damages, contending that they can promote horizontal and vertical equity in awards more effectively than more discretionary approaches. Potential objections to the standardisation of damages that may question its desirability (regarding human dignity, judicial independence, and the role of lobbies) are also discussed. Finally, the argument is made that, even if it became technically possible to accurately measure the actual amount of money that is needed to make an individual injured person feel that they have been made whole again, the standardisation of damages would still be preferable over perfect personalisation for principled reasons related to the rule of law and human dignity.

Advanced artificial intelligence (AI) techniques such as ‘deep learning’ holds promise in healthcare but introduces novel legal problems. Complex machine learning algorithms are intrinsically opaque, and the autonomous nature of systems can produce unexpected harms, which leaves open questions around responsibility for error at the clinician/AI interface. This raises concerns for compensation systems based in negligence because claimants must establish that a duty exists and demonstrate the specific fault that caused harm.This paper argues that clinicians should not ordinarily be negligent for following AI recommendations, and developers are unlikely to hold a duty of care to patients. The healthcare provider is likely to be the duty holder for AI systems. There are practical and conceptual problems with comparing AI errors to human performance or other AI systems to determine negligence. This could leave claimants with unsurmountable technical and legal challenges to obtaining compensation. Res ipsa loquitur could solve these problems by allowing the courts to draw an inference of negligence when unexpected harm occurs that would not ordinarily happen without negligence. This legal framework is potentially well-suited to addressing the challenges of AI systems. However, I argue res ipsa loquitur is primarily an instrument of discretion, which may perpetuate legal uncertainty and still leave some claimants without a remedy.

Proving the causal connection between a medical error and the personal injury suffered by a patient might turn out to be very difficult, if not impossible. If the claimant manages to substantiate that connection by reaching the required degree of probability, they will be fully compensated, and if not, they will not be indemnified at all, even though fault has been established on the part of the medical professional. This ‘all-or-nothing’ approach means that slight differences in the degree of probability (values slightly lower versus values slightly higher than the required threshold) result in fundamental differences in the amount of damages. In order to prevent this unjust outcome and to provide at least partial compensation to those who are unable to demonstrate the existence of a causal link, several legal systems resort to the concept of loss of a chance, which redefines the object of legal protection and regards as recoverable loss the lost or diminished chance of avoiding traditionally understood damage (personal injury). Another proposed alternative to the ‘all-or-nothing’ approach is proportional liability based on potential causation. The present contribution examines the advantages and disadvantages of both concepts and discusses the possibility of their application under Polish law.

Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB , a sexual abuse case, is the latest UK Supreme Court judgment on vicarious liability. This case note is critical of the substantive judgment, as well as the court’s method of arriving at it. The case note argues that the Supreme Court allowed the appeal on tenuous grounds. Further, the practical effect of the judgment is unwelcome. As a result of this case, it will be harder for survivors of sexual abuse to demonstrate vicarious liability because they will find it difficult to show a naturally close connection between intentional torts and authorised employment activities. Lastly, the case note criticises the Supreme Court’s treatment of the facts and the language it used.