XXXII. The Dynamics of Tort Law in Europe – Two Decades of Accumulated Experience

1. Recodification of Entire Civil Codes or of the Laws of Obligations in General

6In retrospect, it seems that the more dramatic the renewal of the law in the books appeared, the fewer changes it actually brought about, at least to the practice of tort law. On second thought, this may not be quite as surprising – after all, the task of replacing an entire civil code, for example, opens up so many battle grounds on so many levels in so many different areas of private law that the energy to completely rehaul one of its key parts may not suffice to actually achieve a revolutionary outcome in the end.

7The most recent example for such developments is Belgium, where a new civil code is on its way,^[7] with some parts already in force.^[8] However, while the original draft of the new tort law provisions^[9] suggests an introduction of quite some important and laudable changes, it seems that the (justified) ambitions of the drafters were not fully appreciated by those who should now contribute to making this into law. It therefore remains to be seen how long it will take until Book 6 of the new Civil code will see the light of promulgation day, and how much of the original draft text will make it into law.

8This delay may come as a relief of sorts to neighbouring France, the motherland of the Belgian Code civil. A comprehensive reform of the law of obligations had started much sooner there, in the wake of the bicentennial of the Code Napoléon,^[10] but still has not come to an end in the ‘Journal officiel de la République française’. This is not apparent at first sight, though – after all, perhaps the most dramatic change from a comparative lawyer’s perspective was the renumbering of the entire law of obligations and therefore also of its tort law provisions. What was previously to be found in art 1382 ff Code civil is now in art 1240 ff, thereby inter alia moving the famous (or notorious) art 1384 to 1242, the new place for the old liability for things (responsabilité du fait des choses). Still, it was really just a renumbering and not a rewording, deemed necessary in the sweeping 2016 recodification of the law of obligations that bypassed the law of delict at the time, though.^[11] The actual substantive reform of French tort law is still in the pipeline, however, despite occasional steps (more or less) forward as reported over the years.^[12] While there are obviously more pressing matters at the moment, it is still deplorable that ‘the initial enthusiasm ... has turned into a diffuse sense of consternation and faithlessness’.^[13]

2. Reforms of the Law of Delict in Particular

9The fate of reform projects focusing exclusively on tort law (as if that were not enough in and of itself, though) was equally mixed over these past two decades. While some countries succeeded in introducing even rather substantial reforms,^[14] others stopped midway and failed to finalise more or less ambitious projects introduced and debated over the years covered by this report.^[15] As with more comprehensive legislative projects mentioned earlier, we have therefore heard about reform plans in this conference series which were not always followed by a notification of completion of such initiatives in one of the subsequent years.

10From a comparative perspective, perhaps the most interesting developments – a rollercoaster of tort scholars’ emotions – concerned the Swiss reform draft, as already highlighted in 2016.^[16] While it deplorably ultimately failed in Switzerland,^[17] Turkey subsequently used significant parts of this draft as an inspiration to update its own tort law provisions accordingly.^[18] It is ironic that the country into which the Swiss codification was transplanted in 1926 now has the more advanced version of the original.^[19] Like the Swiss draft, also an Austrian attempt at a full recodification of the tort law provisions of the ABGB was inter alia based on comparative analyses to support it, but the Austrian draft equally did not survive the fierce debates that it triggered.^[20]

3. Tort Law Updates on a Smaller Scale

11The fact that some countries aimed at a comprehensive reform of their laws of delict or even of their entire civil codes does not mean that legislators in other jurisdictions have ignored tort law entirely over the past decades. After all, there is an abundance of more or less far-reaching singular legislative interventions which have modernised the respective country’s approach to allocate risks, in addition to necessary implementations of EU directives.^[21]

12Apart from State liability,^[22] this affected such diverse aspects as compensation for the non-pecuniary loss of secondary victims,^[23] prescription,^[24] as well as environmental^[25] and medical liability. In the last category falls the Italian legge Gelli-Bianco,^[26] for example, the introduction of a no-fault medical liability regime in Lithuania,^[27] or the inclusion of specific rules on medical treatment contracts into the German BGB, with the latter transcribing existing case law rather than innovating the rules.^[28]

13It is also interesting to note that a fierce debate in Germany at the beginning of the millennium as to whether and how small claims in tort law should be curtailed (with an eye specifically to whiplash injuries) ultimately failed there^[29] but succeeded almost two decades later in England even though it was also ‘extremely controversial’ there as well.^[30]

14Furthermore, updates that significantly shape the practice of tort law do not necessarily originate on the floors of some legislative body. This is true in particular for guidelines and similar practice tools such as the Irish Personal Injuries Guidelines^[31] or the Ogden Tables, the famous English tool for calculating lump sum awards for future pecuniary losses resulting from bodily harm and fatal injuries.^[32]

15Some legislative achievements reported over these past two decades seem worthy of adoption in other countries as well but unfortunately do not (yet) seem to inspire legislators elsewhere. One such example is the Apologies (Scotland) Act of 2016,^[33] which ‘has the simple, focused purpose of providing that in any civil legal proceedings ... an apology made outside the proceedings (a) is not admissible as evidence of anything relevant to determination of liability in connection with the proceedings and (b) cannot be used in any other way to the prejudice of the person who made the apology.’^[34] This would seem an important clarification in particular for medical malpractice cases throughout Europe, if only as an incentive to ‘making amends’ outside of litigation.^[35]

4. Proposals for Harmonisation

16In the first half of this two decades survey period, two substantial proposals to harmonise tort law in Europe were published, the ‘Principles of European Tort Law’ (PETL) by the European Group on Tort Law^[36] and the ‘Principles of European Law on Non-Contractual Liability Arising out of Damage Caused to Another’ (PEL Liab Dam) by the Study Group on a European Civil Code.^[37] While the Study Group no longer seems to be active, the European Group on Tort Law is currently preparing an update to their original draft.^[38]

17The impact of neither of these two drafts can easily be measured. However, draft reform projects thereafter did at least consider them,^[39] and several supreme court decisions took notice of the proposals.^[40]

5. Brussels Calling?

18While those two drafts of ‘Principles’^[41] of the laws of delict in Europe were not meant to serve as a blueprint for a European instrument,^[42] but rather as a basis for future work towards approximation, either on a national level or by the EU, it is obvious that the latter addressee has not heard that call yet.^[43] It is not even clear whether that would be the appropriate forum for such an interference with existing tort law cultures in Europe,^[44] let alone whether and to what extent harmonisation would be desirable at all, whether it would be politically feasible and indeed work in practice. After all, the rather, well, mixed experience with the Product Liability Directive (PLD)^[45] in its first decades was not encouraging in that respect.^[46] This may have been at least one of the reasons why the Commission even expressly excluded the option to extend efforts to harmonise contract law to tort law at the beginning of the millennium.^[47]

19This does not mean that nothing of relevance for tort law happened in EU legislation over these past two decades. Perhaps the most significant legislative act adopted by the EU was the 2007 Rome II Regulation,^[48] finally harmonising conflicts of tort laws to a considerable degree.^[49] The European motor insurance scheme benefitting victims of traffic accidents has been updated multiple times since the turn of the millennium,^[50] with the most recent amendments adopted in 2021.^[51] Other means of transportation were addressed by some EU laws as well.^[52] Specific loss scenarios arising out of infringements of data protection^[53] or harmful anti-competitive conduct^[54] were also tackled by the EU legislators.

20However, in most recent years, some seismic activity can be sensed indicating the possibility of at least some further steps towards harmonising at least some further aspects of delictual liability, including a face-lift of the PLD with a possible expansion of its scope.

21This change of pace was clearly triggered by the evolution of technology. Digital technologies in general and artificial intelligence (AI) in particular became priority topics for the Commission,^[55] which invariably inter alia raised questions of how to deal with their possibly harmful side-effects, if only in order to provide for a predictable framework for the industries to proceed with their research in these fields. When the European Parliament published its ‘Resolution on Civil Law Rules on Robotics’ in 2017,^[56] the political pressure on the Commission to act increased. In the following year, the Commission published a Staff Working Document on ‘Liability for emerging digital technologies’^[57] accompanying a Communication from the Commission to the other institutions on ‘Artificial Intelligence for Europe’.^[58] In the same year, the Commission set up an ‘Expert Group on Liability for New Technologies’, which had two sub-groups. While the first^[59] was instructed to assess the PLD in light of the preceding (fifth) evaluation of this instrument,^[60] the second formation had the more general task of examining ‘whether and to what extent existing liability schemes are adapted to the emerging market realities following the development of the new technologies such as Artificial Intelligence, advanced robotics, the IoT and cybersecurity issues’.^[61] This so-called ‘New Technologies Formation’ (NTF) published its final report in November 2019.^[62]

22The first (PLD) formation never produced a concluding document, and it initially appeared that they would not call for a substantive change to the black-letter text of the PLD itself.^[63] However, the apparent reluctance of the Commission to update the PLD seems to have changed in the meantime, and a reform of the PLD as such is very likely at this point. The Commission launched a public consultation in 2021 on ‘Civil Liability – Adapting Liability Rules to the Digital Age and Artificial Intelligence’,^[64] which inter alia expressly considered that ‘the Product Liability Directive ... may ... need to be adapted’.^[65] How far such changes will go, and whether previously disputed aspects of the PLD with no immediate relevance for new technologies specifically will also be reconsidered (such as the € 500 threshold for property damage or the development risk defence)^[66] remains to be seen.

23Another question mark remains – if the PLD were indeed to be amended, will it extend to AI, and, irrespective thereof, will there be another separate instrument addressing liability for AI, either as a standalone piece of legislation or complementing the new PLD? After all, the European Parliament already took a bold step forward in 2020 by proposing a full-fledged regulation (!) on liability for AI.^[67] So far, the Commission has at least taken preparatory steps for such a possible instrument on liability for AI, inter alia by commissioning a study on the current responses to the risks of AI in the Member States’ leges latae.^[68] The next five-year report in this series will hopefully already know the outcome of these current developments.

1. Damage and Compensable Losses

2. Specific Liability Scenarios

34This is not the place to showcase the full bandwidth of torts or bases of liability, or even some statistically dominant groups of cases such as traffic or medical liability, or even more specific topics such as cases involving animals.^[87] Needless to say, there was an abundance of case law in all possible areas of tort law. Instead, I will only focus on a few very specific grounds of liability.

3. Prescription

53Another trend that emerged over the past two decades is a new or at least modernised approach to prescription in the jurisdictions under survey, and it was one of the special topics of the Annual Conference already in 2008.^[136] Several countries introduced new legislation in that period.^[137] The Eurotort database lists about 160 cases where the limitation of tort claims was at least one key aspect determining the outcome, with some reported over the past five years.^[138] The European Group on Tort Law has finalised its project on the topic, culminating in its 2020 publication.^[139]

54Despite such high activity both in courts and in parliaments, it remains remarkable how different prescription periods continue to be throughout Europe,^[140] with no harmony yet in sight. While the duration of such time periods may seem random to some extent, this would speak even more in favour of some approximation at least in this regard. Still, this is not imminent, and efforts on the EU level have so far failed. The question raised in the 2016 report^[141] whether the Howald Moor ruling of the ECtHR^[142] will at least have an impact on the ten year period of art 11 PLD is also as yet unanswered.

1. Recent Developments Regarding Immaterial Harm

55These past five years have shown quite some interesting changes to the laws and/or practice of indemnifying pain and suffering and other non-pecuniary losses in the jurisdictions covered.^[143]

56Perhaps the most remarkable change happened in Malta, where immaterial harm resulting from personal injuries was hardly compensated at all until very recently, despite legislative attempts to change that in the past.^[144] In 2018, however, Malta introduced a new art 1045 to its Civil Code, which now foresees a maximum award of € 10,000, though in very limited cases.^[145]

57In some jurisdictions, the awards for non-pecuniary losses are monitored and effectively steered by recommendations or guidelines published regularly by the competent commissions for consistency reasons. Recent publications of such guidelines include Finland^[146] and Ireland.^[147]

58In France, an interesting digital project to contribute to an approximation of awards was launched in 2020, the so-called DataJust database, which was conceived to process all decisions of the years 2017 to 2019 where personal injury was at stake. It should have provided courts with guidance to calculate compensation for future cases, ultimately replacing the various (and diverse) guiding tables currently in use.^[148] However, the project seems to have stopped at the beginning of 2022, and it is unclear for now what will happen with the data already collected.^[149]

2. Maximum Awards in Comparison

59While it is impossible to provide comparative analyses of the amounts awarded for the manifold varieties of pecuniary losses, we at least try to keep track of the pay-outs for immaterial harm. However, any comparison is subject to major caveats (which therefore also apply to the information in the following). To begin with, the jurisdictions under survey have different concepts of non-pecuniary losses.^[150] While it is safe to state that all include damages for pain and suffering, the inclusion of losses of amenities already blurs the picture, as some of the detriments may be calculated into an award categorised as material harm.^[151] Also, independent separate categories may or may not be added to the grand total qualified as compensation for immaterial harm, including, for example, separately calculated awards for the violation of personality rights or independent heads of damage such as the Italian danno biologico.^[152]

60The amounts presented below were quoted by the reporters to this volume when asked about the highest possible award for immaterial harm in the most severe imaginable personal injury cases. Some reporters quoted ranges of amounts rather than a single figure due to the multitude of factors that evidently play a role. This is true for all jurisdictions, though – obviously, courts will primarily look at the specific circumstances of each case and take into account, for example, the age and other specific aspects of the victim’s life before the accident. Some of the awards included into this overview are only available under certain specific liability scenarios such as criminal conduct, intent or at least gross negligence.

61Despite all those stipulations, it is still remarkable how far apart the lowest and the highest possible awards in Europe are. It is even more astonishing, though, that a certain alignment seems to have taken place over the past five years, leading to a rather solid median which a surprisingly high number of jurisdictions seem to acknowledge as adequate.

62As in the 2016 report, the amounts just quoted are now put into perspective with the comparative price level indices in all these countries.^[153] One traditional (though presumably no longer equally relevant) argument used in support of calculating compensation for pain and suffering was that the award would allow the victim to finance some alternative pleasures, which may help to out-balance the suffering sustained.