W Digest of European Tort Law Vol. 1 Edited by the Research Unit for European Tort Law of the Austrian Academy of Sciences Bénédict Winiger, Helmut Koziol, Bernhard A. Koch, Reinhard Zimmermann (eds.) Digest of European Tort Law Volume 1: Essential Cases on Natural Causation Contributors Håkan Andersson Nils Jansen Caroline Pellerin- Karine Anterion Thomas Kadner Rugliano Bjarte Askeland Graziano André G. Dias Pereira Ewa Baginska´ Julija Kirsiene Eoin Quill Ján Belko Jens Kleinschmidt Julien Rey Bertil Bengtsson Bernhard A. Koch Jordi Ribot Klaus Bitterich Helmut Koziol Albert Ruda Eugenia Dacoronia Karola Krell Simona Selelionyte- Anton Dulak Fabien Lafay Drukteiniene Isabelle C. Durant Janno Lahe Lena Sisula-Tulokas Laurence Francoz- Rok Lampe Tambet Tampuu Terminal Ulrich Magnus Luboš Tichý Ivo Giesen Attila Menyhárd Kalvis Torgans Michele Graziadei Davide Migliasso Vibe Ulfbeck Marie Grenier Olivier Moréteau Willem H. van Boom Mika Hemmo Miroslaw Nesterowicz Bénédict Winiger Martin Hogg Jaana Norio-Timonen Reinhard Zimmermann Ji`r´í Hrádek Ken Oliphant SpringerWienNewYork Austrian Academy of Sciences Research Unit for European Tort Law Landesgerichtsstraße 11 1080 Vienna, Austria Tel.: +43 1 40127 1687 Fax: +43 1 40127 1685 http://www.etl.oeaw.ac.at E-Mail: [email protected] This work is published with the financial support of the Austrian Science Fund (FWF) Gedruckt mit Unterstützung des Fonds zur Förderung der wissenschaftlichen Forschung (FWF) This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically those of translation, reprinting, re-use of illustrations, broadcasting, reproduction by photocopying machines or similar means, and storage in data banks. © 2007 Springer-Verlag/Wien Printed in Germany SpringerWienNewYork is part of Springer Science + Business Media springer.com Product Liability: The publisher can give no guarantee for the information contained in this book. This also refers to that on drug dosage and application thereof. In each individual case the respective user must check the accuracy of the information given by consulting other pharmaceutical literature. Typesetting: Composition & Design Services, Minsk, Belarus Printing and binding: Strauss GmbH, 69509 Mörlenbach, Germany Printed on acid-free and chlorine-free bleached paper SPIN: 11608783 CIP data applied for ISBN 978-3-211-36957-9 SpringerWienNewYork Preface European jurists increasingly look to their neighbours’ legal concepts and solutions. As decisions of foreign courts are sometimes hardly accessible, it may be helpful to collect the most important ones in a Digest of Modern European Civil Law. The present book is a first step in this direction. It provides, for one specific field, a selection of national cases, which, otherwise, most of us would probably ignore. This volume focuses on the question of “natural” causation in Europe. Study groups based in 25 different countries have analysed their national jurisprudence and selected the most important cases within the framework of a number of standardized sub-catego- ries. The facts and the decision of each case are summarised and commented on in the light of the relevant national doctrine. On the supranational level, we also present and analyse important decisions of the Courts of Justice of the European Community. Fur- thermore, we have attempted to provide depth to the discussion by including a historical report, another report on which solution would be yielded by an application of the “Principles of European Tort Law”, as well as a comparative summary written by one of the editors. Just as the European Group on Tort Law with their “Principles of European Tort Law”, our group wants, with the present Digest, to contribute to a better understanding of tort law in Europe. We hope that this collection will be useful not only to academics, but also to legislatures and practitioners to whom it makes available the legal solutions and the state of the discussions abroad. Moreover, if one day the private law, or parts of it, should be unified in a European Civil Code, jurists would quickly need case law to specify its provisions. Contrary to new or revised national codes, which are generally based on a coherent national juris- prudence, the European Code will constitute an amalgamation of traditions, and will not be backed up by a systematic body of previous decisions. To fill this gap, the judges may initially want to refer to the cases collected in this Digest, upon which a genuinely European jurisprudence can be built. It is hoped that this first volume will be followed by others, also devoted to central concepts of tort law, such as damage or fault. In an ideal world, a complete Digest would even cover all areas of private law. Perhaps our publication will inspire other groups to work towards achieving that aim. The present book is divided into 11 fundamental categories of “natural” causation. Within each category, the selected cases, solutions and comments are presented in the following manner: each category begins with a historical introduction (1), followed by the reports of the 25 Member States of the European Union (2–26), the decisions of the European Courts of Justice (27), the solutions of hypothetical cases according to the Principles of European Tort Law (28) and finally by a comparative summary (29). This reader-friendly structure allows individual readers who are interested in a spe- cific problem, such as damage caused by multiple tortfeasors, to seek the relevant infor- V Preface mation for all countries in chapter 5. Readers looking for the cases and solutions of a particular country, for example England, will find all the English cases under the same number (12) across the book. The comparative reports (29) provide a summary of our main findings for the more hurried reader. The references to the texts in our book are thus composed of 3 numbers. The first two are cited at the top of each page, and they indicate the basic category and the spe- cific (usually: country) report within each category. The third figure is the marginal number into which each individual report has been subdivided. For example, 5/12 no. 1 indicates Multiple Tortfeasors (i.e. “the category”) in English law (i.e. “the country”) and refers to the facts of the case Downs v Chappell (which are to be found in marginal number 1). We owe profound thanks to the staff of the Research Unit for European Tort Law of the Austrian Academy of Sciences, especially to Virginia Antonini, Katarzyna Ludwi- chowska, Barbara Steininger, Donna Stockenhuber, Barbara Wehr and Judith Zehetner for coordinating the research project in Vienna and for preparing the manuscript for publication. Further, we would like to express our gratitude to the Austrian Science Fund (Fond zur Förderung der wissenschaftlichen Forschung) and the Swiss National Science Foundation (Schweizerischer Nationalfonds) for their financial assistance. Last, but not least, we would like to thank Springer Publishing House for supporting this project. The Editors VI Overview 1. Conditio sine qua non in General 2. Damage Caused by Omission 3. Preventive Expenses Incurred Before the Damaging Event 4. Damage Caused by Psychological Influence 5. Damage Caused by Multiple Tortfeasors 6. Damage Caused by Less Than All Possibly Harmful Events 6a) Damage Caused by Less Than All Possibly Harmful Events Outside the Vic- tim’s Sphere 6b) Damage Caused by Less Than All Possibly Harmful Events, Including Events or Hazard Within the Victim’s Sphere 6c) Damage Caused to Less Than All Victims by a Harmful Event 6d) Damage Caused to Less Than All Victims by One or More Possibly Harmful Events 7. Damage Caused by Several Simultaneous, but Independent Events 8. Damage Caused by Several Successive, but Independent Events 8a) Damage Caused by Several Successive, but Independent Events Outside the Victim’s Sphere 8b) Damage Caused by Several Successive, but Independent Events, Including Events or Hazard Within the Victim’s Sphere 9. Minimal Causation 10. Loss of a Chance 11. “Haftungsbegründende und haftungsausfüllende Kausalität” VII Table of Contents Abbreviations ............................................................................................................................ XV Questionnaire ................................................................................................................................1 1. Conditio sine qua non in General........................................................................................9 1. Historical Report.............................................................................................................9 2. Germany .......................................................................................................................15 3. Austria ..........................................................................................................................17 4. Switzerland ...................................................................................................................19 5. Greece...........................................................................................................................22 6. France ...........................................................................................................................25 7. Belgium ........................................................................................................................28 8. Netherlands...................................................................................................................32