Volume 2, Issue 1

The current article examines how China, Brazil and Russia – three major second-generation industrial states whose legal systems are founded on European civil law – have reacted to the legal challenges of modern risk society in their recent codifications of tort law. The author provides an overview of the new liability regimes that have been put in place, demonstrating the extent to which traditional fault-based liabilities have been replaced by stricter liabilities based on risk, whether resulting from organisational shortcomings in industrial processes or inherent in industrialisation and technical development.

This article shows that the loss of chance system, like the all-or-nothing system, but contrary to the proportional liability system, may lead to situations where minor changes in the probability that the defendant's negligence was the cause of the harm result in significant changes in the amount of damages.

In this article, the author examines from a comparative perspective the nature of vicarious liability in tort (or liability for the acts of others, to use civilian terminology). She notes a common legal framework, crossing common and civil law boundaries, and focuses on three key questions in determining the scope of this form of strict liability: Should liability be strict or fault-based? Which relationships should give rise to liability and, bearing in mind the disintegration of traditional working patterns, should liability be extended to temporary or agency workers? When should a tort be considered in the ‘course of employment’, dans les fonctions auxquelles ils les ont employés or in Ausführung der Verrichtung ? In examining these key questions with reference to case-law from the common law (England and Wales, Canada, Australia) and the civil law (France, Germany), together with examination of the relevant provisions of the Principles of European Tort Law and the Draft Common Frame of Reference, the author argues that a comparative perspective increases our understanding of core principle, and helps us to appreciate the factors which influence legal development, in addition to suggesting possible models for reform.

The French medical accident compensation scheme, introduced in 2002, guarantees full compensation to the victims of serious medical accidents, irrespective of fault. Eight years after the scheme's inception, this article assesses the success of the redress regime so far, focusing in particular on the extent to which the regime has succeeded in achieving an appropriate balance between compensation and limiting cost, accountability and the promotion of openness. It argues that whilst the scheme facilitates the compensation of certain victims of medical accidents, retains the accountability of the medical profession and offers a less acrimonious redress mechanism than a traditional court action, these advantages have to be weighed against the resulting increased cost burden on the State, the fact that the scheme is unlikely to have a great impact on the reporting of accidents, and the increased overall complexity of the compensation and liability system in France. The article also considers to what extent the French experience is relevant in the broader European context. With cross-border patient movement increasing, differences in national solutions raise concerns as to disparities in redress rules depending on where the patient is treated. The issues with respect to medical accident redress which arise as a result of the European Commission's proposed directive on patient rights in cross-border health care are therefore briefly considered.

This article presents a comparative legal analysis of wrongful claims handling by insurance companies in indemnity and liability insurance. From the outset, it is clear that it may be difficult to draw the line between legitimate claims denial and refusal to pay, on the one hand, and malicious protraction, procrastination and rejection of valid claims, on the other hand. Therefore, it is interesting to find that European legal systems diverge considerably in their stance against wrongful claims handling. In some legal systems, the issue of wrongfulness does not seem to play a significant role. There, the focus is on less value-laden concepts such as delay, default and the imputability of the delay. The result is that, at some point in time, statutory interest may become due. Sometimes, additional damages may be claimed as well. In other legal systems, ‘bad faith’ is considered a special category for all insurance contracts, allowing an escape from the limited amounts paid by way of interest. Again other legal systems seem to regard the obligation to pay interest as the only consequence of wrongful claims handling. The analysis of the different approaches towards wrongful claims handling shows that there are different solutions not only across legal systems but also within jurisdictions. Tort law and insurance law may have to compete with alternative sources of law such as insurance business regulation. Given the wide variety of positions, the Principles of European Insurance Contract Law (PEICL) seem to go beyond merely restating the current common core.