Volume 8, Issue 1

A model of negligence in common law jurisdictions is a conceptual structure that basically seeks to align the three legal concepts used by courts to administer negligence law with the three substantive elements that constitute, justify and limit negligence liability. The three legal concepts are carelessness , legal causation (assuming factual causation ) and duty . The three substantive elements are undesirable conduct , a sufficient link between this conduct and harm , and the desirability of liability . Another major task of a model of negligence is to explain the role and meaning of the foreseeability requirement in each concept and element of liability. The traditional model of negligence, identified with the sequence duty-breach-causation, is characterised by the double role that is assigns to the duty concept. This concept is aligned both with the element of undesirable conduct (conduct is undesirable only when breaching a pre-existing duty), and with the element of desirable liability (liability is desirable only where policy considerations justify a finding of a duty to compensate). Being a servant of two masters, the duty concept is the major source of the confusion and ambiguities that have plagued negligence law for generations. Against this background the traditional model was challenged in 2013 in Israel’s Supreme Court by a Justice who embraced an alternative model formerly suggested by the author. The essence of this new model is to align the duty concept only with the element of desirable liability , severing it from the element of undesirable conduct . Such change arguably disperses confusion and ambiguities, and clarifies the roles and meaning of the foreseeability requirement. In 2014, however, another Justice challenged the new model and called for the reinstatement of the traditional model in a different version. This paper explains why the new 2013 model is preferable to the traditional model in all relevant aspects. The analysis sheds new light on the notions of proximity, special relations , reliance , assumption of responsibility and prima-facie duty . The analysis also serves as a comparative perspective on fault-based liability in continental European jurisdictions.

There are quite a lot of differences between compensation schemes in Europe when it comes to personal injuries. Under most legal systems the social security systems do not change the law of damages as the social insurer can take recourse against the tortfeasor. But particularly in Scandinavia the social security system displaces tort law by excluding the possibility of recourse and thus providing for a generous release from liability for the offender. These differences give the impression that they would prevent harmonisation of European compensation systems, but it seems that such differences are bridgeable.

Corporate personality and limited liability have been the foundations of corporate law for most of its modern history. While these concepts greatly contributed to the early development of corporations, their application in the modern era is outmoded. Nowhere is this clearer than in ‘risky business’ scenarios, where a subsidiary is constituted for the purpose of shielding the corporate group as a whole from tortious liability arising from risky or dangerous activities. Tort victims generally must rely on ineffective and inconsistent common law and tort law doctrines in order to seek redress for torts committed against them, and a number of high profile cases have highlighted the flaws in such approaches. Many corporate law and tort scholars have commented on these flaws and a literature has developed proposing rational alternatives. This paper presents the case for adopting ‘enterprise liability’ in risky business situations, that is, treating the companies within a corporate group as one unified enterprise for the purposes of compensating tort victims.

The article discusses liability issues related to the contracting out of welfare services. It focuses on the possible liability of the private actor and of the public entity towards the individual (the citizen) for non-performance or mal-performance of the welfare service. It is argued that since there is no contract between the individual and the private service provider there may be several obstacles to a claim against the private service provider based on contract. At the same time it is a general tort law principle that there is no vicarious liability for independent contractors, making it difficult also to succeed with a claim against the public entity based on tort law. Thus, a liability gap seems to exist. However, the article demonstrates that there are signs in different jurisdictions that solutions are being found in case law to this problem allowing to some extent for the imposition of some kind of vicarious liability on the public entity. Four different models are identified. The reasoning behind these models varies but they all have in common that the public law nature of the service that has been outsourced somehow plays a role.

In the area of mass litigation, little is known about the needs of the individual victim and to what extent these needs are satisfied through the system of collective redress. Are we really helping tort victims through procedures of mass litigation? In response to this question we conducted two studies that focused on the needs of the individual victim in mass litigation contexts. The main results and valuable insights from these studies are presented and compared in this article. We conclude that although the damages have derived from vastly different origins, it is remarkable that some of the needs are rather comparable. Money is not the only need of victims. Sometimes it is not even the primary reason for victims to litigate. Both groups of victims express the need for recognition, taking responsibility, prevention, and information. Moreover, we have found that these victims experience feelings of solidarity, have altruistic needs in multiple forms, and could experience an overwhelming feeling of empowerment in joining a mass litigation process.