Band 13, Heft 3

With legislative proposals for two directives published in September 2022, the European Commission aims to adapt the existing liability system to the challenges posed by digitalisation. One of the proposals is related and limited to liability for artificial intelligent (AI) systems, but the other contains nothing less than a full revision of the 1985 Product Liability Directive, which lies at the heart of European tort law. Whereas the current Product Liability Directive largely followed the model of US law, the revised version breaks new ground. It does not limit itself to the expansion of the concept of product to include intangible digital goods, such as software and data as well as related services, important enough in itself, but also targets the new intermediaries of e-commerce as liable parties. As such, the proposal for a new product liability directive is a great leap forward and has the potential to grow into a worldwide benchmark in the field. In comparison, the proposal of a directive on AI liability is much harder to assess. It remains questionable whether a second directive is actually needed at this stage of the technological development.

This article discusses the rules applied by the courts in the Republic of Ireland and the United Kingdom in determining whether the defendant in a negligence action attained the required standard of care in performing a professional task. It will discuss the effect of the defendant’s adherence to a practice widely accepted in the relevant profession at the time, and the effect of expert witnesses testifying that they regard the defendant’s conduct as proper. This article also discusses the different rules applying to the provision of certain information by a professional.

Psychological research shows that apologies can have many positive effects. However, in a legal context, the positive potential of apologies could be complicated when legal proceedings raise barriers to apologising. Ideally, legal proceedings should encourage wrongdoers to apologise rather than discourage them. There is still much debate about the legal consequences of apologising. According to popular wisdom, persons who face the prospect of being blamed for an act should avoid apologising. Offering an apology would be risky because the apology could be interpreted as an admission of liability. The question is whether this reticence is justified. For many jurisdictions, we still know little about the exact role that apologies play in judicial decision-making. This paper provides a detailed and structured overview of how apologies can play a role in judicial decision-making in a civil law legal system. A structured content analysis was conducted, in which almost 4,000 Dutch judgments were analysed. The research findings show that the role apologies can play in legal decision-making is much more complex than previously assumed in the literature. This study shows that different modalities can be distinguished. Apologies almost never appear to lead to negative legal consequences, and, in many cases, apologising actually has legal benefits for the provider of such apology. Also, the case law analysis highlights that there are ways to encourage apologising in legal proceedings.

Immanent tensions of tort law vibrate apparently with greater amplitude regarding the so-called ‘loss of life’ claims of secondary victims (family members) for non-pecuniary damages. The loss of a loved one cannot be expressed in terms of money, yet tort law attempts to do so. Deterrence and punishment are basically alien to civil liability (at least in the civil law tradition), but there is an element of punishment involved. It is impossible to serve two masters; nevertheless, both predictability of law and individual justice are sought at the same time. There is a constant fear of unfounded claims, yet there is also a tendency to release the surviving family member(s) from the burden of proving feelings that are difficult to quantify (if possible at all). In this paper, a multi-dimensional model is created for a better understanding, based on those tensions and the possible combinations of solutions provided by the legal systems to them. While some contrasts are highlighted (eg first, having legislative acts according to which particular relatives are entitled to compensation and in what particular amount; or on the contrary, leaving matters to the discretion of the trial judge; and second, whether the degree of relation matters and/or emotional proximity is crucial), reference is also made to the still unanswered basic questions, such as what actually is the loss to be compensated: the grief and sorrow felt in itself, the aggravation of the claimant’s own life (among others, loss of guidance, care and companionship), the loss to the integrity of the family as a value, or finding the energy to deal with the loss and therefore not investing in other constructive purposes or life goals? The analysis of the author’s own legal system, ie of the Hungarian approach, recently rich in variety, and some additional comparative remarks provide the first test of the model and allow some general conclusions.