By Ken Oliphant
No matter if the damage for which reimbursement is sought in an motion in tort is considered a unmarried indivisible loss or a plurality of losses could have a few vital ramifications for the legislations of tort, for instance, in contemplating compensable harm, the apportionment of accountability among a number of tortfeasors, and the applying of hassle classes and (where they exist) caps and thresholds. those concerns could have specific importance within the context of mass torts, and lift questions of non-public overseas legislation and civil process in addition to great tort legislations. also they are of substantial useful significance for insurers. during this comparative learn, kingdom experiences from twelve felony platforms and distinct stories on inner most foreign legislations and assurance supply an perception into the interplay of tort legislation, civil process, and assurance during this hitherto mostly missed quarter of felony technology.
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Extra info for Aggregation and Divisibility of Damage (Tort and Insurance Law)
Tort, contractual liability, or strict liability). 38 Insofar as the claim is brought under the Product Liability Act, the threshold seems to apply to each damaged thing, according to the wording of the statute (“Der Schaden durch die Beschädigung einer Sache ist nur zu ersetzen […] mit dem 500 Euro übersteigenden Teil”, The loss arising from damage to a thing is only recoverable […] to the extent it exceeds € 500). In academic literature, however, it is pointed out that such an interpretation would lead to a victim possibly being denied compensation if he sustained damage far exceed- 39 36 R.
H. ), Kommentar zur ZPO (3rd ed. 2006) § 41 no. 6; Rechberger/ Simotta (fn. 72) no. 431. See on this Rechberger-Mayr (fn. 72) § 55 JN no. ; Rechberger/Simotta (fn. 72) no. 225. Cf. 774; 2 Ob 266/97z = RZ 1999/3. 40 Ernst Karner/Olaf Riss spect to the issue at hand, an overall loss must be taken as the basis if there is a legal and factual connection between the losses sustained. 83 The total value of the claim is also decisive pursuant to § 55 (3) JN in the event that only part of a monetary claim is sued for.
On unsolved causation in the case of accumulated effects Koziol (fn. 2) no. 3/89. 67 Ernst Karner/Olaf Riss 36 68 There is as yet no case law in Austria on mass torts involving multiple alternative perpetrators and victims. However, Koziol presents weighty arguments in favour of market share liability in Austrian law, using the example of damaging medications originating from different manufacturers:69 “It is decisive that on the one hand, each of the producers caused a part of the harm in proportion to his market share and would be liable for the harm caused by his drugs; on the other hand, every injured person would be able to claim damage, provided that he could prove which manufacturer made the drug that caused his injury.
Aggregation and Divisibility of Damage (Tort and Insurance Law) by Ken Oliphant