Strict liability in contemporary European codification: torn between objects, activities, and their risks.

Author:Buyuksagis, Erdem
  1. INTRODUCTION II. CURRENT SOURCES OF STRICT LIABILITY A. Special Legislation B. Relaxing the Rules to Allow a Broader Scope of Strict Liability 1. By Way of Analogy 2. By Way of the Concept of Verkehrssicherungspflicht. 3. By Way of Custodian Liability C. Problem of Legal Uncertainty III. VARIED PERSPECTIVES A. "Control of Dangerous Objects" As a Criterion B. "Practicing a Dangerous Activity" As a Criterion IV. REFLECTIONS A. Can Activities As Such Be Dangerous? B. Common Usage: Impracticable Criterion C. "Objects" Rather Than "Activities "As a More Realistic Criterion D. Necessity of a Dangerousness Chart for Substances and Emissions V. CONCLUSION I. INTRODUCTION

    In many European codifications, strict liability is restrictively applied to the sources of danger listed by the legislature in statutory instances. (1) The fact that courts are sometimes uncomfortable extending the scope of application of these statutory instances often leads to contradictory solutions. This reluctance goes a long way towards explaining scholars' calls for the introduction of a "general clause" in the area of strict liability to avoid the haphazard way in which strict liability may apply to one case but not to another seemingly similar one. (2) Today, partly as a reaction to this doctrinal call for coherency, various statutory solutions as well as proposals have been suggested to widen the scope of strict liability clauses.

    In the current European scholarly debate on drafting satisfactory rules on strict liability, a balance is sought between two opposing extremes: restricting the application of statutory sources of strict liability or using a "general clause" to allow judicial policymaking to shape strict liability. (3) This Article aims to determine a preferred balance, taking into account fundamental prerequisites such as legal certainty, foreseeability (and therefore insurability), and equal treatment of equal sources of danger. In doing so, this Article also addresses the scope of application of such rules. Should the rules be limited to the pursuit of abnormally dangerous activities (as many drafts propose) or to the control of abnormally hazardous objects? Since the concept of "activity" may encompass just about any human or professional undertaking, we argue that adopting dangerous activity as the criterion for the general clause would make its scope unpredictable. This Article argues that a preferred legislative framework would take an "object," rather than "activity," as the central criterion.

    First, the Article briefly introduces the strategies that courts apply when confronted with the statutory limits of strict liability and how such courts may or may not allow a broader scope of strict liability. The Article then focuses on recent drafts and proposals for widening the scope of strict liability through general clauses. We examine whether "activity" can be considered a coherent criterion for the application of a "general clause." Furthermore, we draw out the difficulties of evaluating and comparing the dangerousness of activities. Finally, the Article presents and supports an alternative approach. By taking "object" rather than "activity" as the central concept for statutory strict liability, it is possible to avoid the pitfalls of the court-centered piecemeal development of such liability. Moreover, this approach may promote coherent, practicable, and sound strict liability policy-making.


    Many European courts have relaxed the interpretation of the specific statutes without waiting for the legislature's intervention to allow a broader scope of strict liability. (4) The question is whether this judicial intervention solves the problem in such a way that it renders unnecessary a possible legislative implementation of a general clause of strict liability.

    1. Special Legislation

      In many European countries, liability without fault is still limited to specific legislative instruments that provide for narrowly defined, abnormally dangerous activities or objects. (5) The reasons for this are by and large historical. In light of industrial developments at the beginning of the twentieth century, liability for harm caused by activities or objects that present significant residual risk--that is, risk that is not eliminated even when one takes reasonable care--has traditionally been thought of as an exception to generally fault-centered tort law. (6)

      Accidents resulting from residual risk are said to be "unavoidable," in the sense that human agency cannot practicably prevent them. Goods like food, drugs, chemicals, or machines, even when produced under today's best manufacturing practices (for example, Six Sigma (7)), may present unavoidable defects that could provoke accidents. (8) The legal system tolerates a number of activities or objects presenting residual risk insofar as they are deemed necessary for the good of the society.(9) When accidents occur from residual risk, fault-based liability does not allow the compensation and deterrence mechanisms to work. Negligence liability is generally considered to be based on the fundamental idea that the person who creates a risk should be held liable for damage caused by such risk as long as the cost of accident avoidance is less than the losses that might otherwise ensue. (10) Therefore, negligence liability does not aim at eradicating incremental residual risks. At some point, the costs of additional care would outweigh the likely value of the risk avoided. Thus, in order to ensure adequate protection from harm, the legal system may apply strict liability to the person who creates a dangerous situation and who draws financial benefits from it. (11) Therefore, the philosophy behind imposition of strict liability is utilitarian: ubi emolumentum, ibi onus esse debet (where one has a right, one must bear its corresponding obligations).

      For some authors, the imposition of strict liability also aims to create an incentive for the injurer to avoid accidents that might result from practicing abnormally dangerous activities and using hazardous objects. (12) For others, the strict liability doctrine is largely concerned with correcting substantial imbalances resulting from harm that due care did not prevent. (13) Whatever the justification, the limitations of this approach currently vary from one legal culture to another. (14) That is why it must be emphasized from the outset that there is no European "common core" of legal principles of strict liability. (15)

      However, it is also true that in most European countries, enumerated specific statutory provisions entire victims to compensation simply because they have suffered injury from the exposure to a specific risk. (16) Many European countries, for instance, have adopted strict liability for aircraft owners, nuclear power stations, environmental pollution, railway operators, and car owners and/or keepers. (17)

      Although these specific regimes have traditionally been interpreted narrowly, the trend in recent decades has been to depart from the traditional concept of well-delineated strict liability regimes and to extend strict liability beyond its original ambit. (18) Indeed, many courts have relaxed their statutory interpretation as a response to the tension between the statutory constraints and the perceived need to extend strict liability to similar sources of danger. (19)

    2. Relaxing the Rules to Allow a Broader Scope of Strict Liability

      The rules may be relaxed in several ways to allow a broader scope of strict liability. Austria is one of the few countries that allows extension by analogy beyond the specifically enumerated statutory provisions. (20) In some countries--such as Germany, Switzerland, and Turkey--extension by analogy is seen as the preemption of legislative power and is therefore considered improper. (21) The courts in these countries have developed, in negligence liability, the concept of Verkehrssicherungspflicht (duty to maintain safety, i.e., duty of care to protect the public from injuries), which increases the standard of care in such a way that the injurer cannot realistically bring any exculpatory proof. (22) In certain other countries, particularly in Latin Europe, courts have developed a truly strict liability regime by way of custodian liability.

      1. By Way of Analogy

        The trend of extending the scope of strict liability began in Austria in the early 1950s. Since then, the Austrian Supreme Court (OGH or Oberster Gerichtshof) has developed a kind of strict liability particularly for dangerous commercial practices. (23) In a 1973 decision, the OGH clarified the main idea behind this liability as follows:

        Austrian law is as little familiar with a general strict liability for the damage caused by an enterprise as with a general vicarious liability of the enterprise for its employees vis-a-vis anyone. However, according to case law the intensified liability of enterprises for specific sources of dangerous activity which the legislature has imposed in particular instances [...] has to be extended in principle by analogy to all dangerous business activities; whoever runs such an enterprise cannot shift onto the community the danger springing from the nature of the activity which causes damage to body, life and property of others. Instead, he shall be held liable for those even when he or his enterprise auxiliaries cannot be considered to have been negligent. (24) The danger of running a business as mentioned in the decision may be understood very broadly. In order to establish legal consistency, the OGH limited the scope of strict liability to commercial operations whose activities carry higher risk than the acceptable level based on the frequency of the danger and the gravity of the damage. (25) In a 1971 decision, the OGH stated that "[c]onsideration has to be given not only to the probability of damage occurring as created by the source of danger but also to the danger...

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