Unification of Tort Law: Strict Liability

B. A. Koch/H. Koziol (Eds.)

F.D. BusnelliG. ComandéH. Cousy/D. DroshoutM. FaureJ. Fedtke/U. MagnusS. Galand-CarvalI. GileadK. KerameusB.A. Koch/H. KoziolM. Martin-Casals/J. Ribot/J. SoleJ. NeethlingM. Nesterowicz/E. BaginskaE. du Perron/W.H. van BoomW.V.H. RogersG.T. SchwartztL. TichyP. Widmer

KLUWER LAW INTERNATIONALTHE HAGUE / LONDON / NEW YORK

ContentsList of Abbreviations xxvii

Strict Liability: Questionnaire and Cases (Michael R. Will) 3

Part I. General Questions 3A. Légal Basis 3

1. Strict liability versus fault liability - alternatives or grey areas in between?... 32. Other means of achieving strict liability 33. In which fields has strict liability been developed? 34. How do judges, when they interpret statutes or précédents, handle strict

liability? 35. Has a particular risk, once subjected to strict liability (by statute or case law),

later been reassigned to fault liability? 36. Does your law of contract offer the possibility of a claim based on strict

liability in cases where there is also a strict liability in tort? 3B. General characteristics 4

1. What does strict liability attach to? 42. Which factors justify strict liability? 43. Strict liability in favour of the environment, télécommunications, others 44. Who is liable? 45. Where and to what extent do you hâve a channelling of liability? 46. Which defences? 47. Other factors pointing away from strict liability 4

C. Rules differing from gênerai tort law 41. Causation 42. Protective purpose of the statute 53. Type of damages 54. Amount of damages 55. Time limits 5

D. Cumulation of strict liability and fault liability? 5E. Interrelation with other compensation Systems 5

1. Insurance (compulsory or not) 52. Social security 53. Workers' compensation 54. Compensation fund 5

F. Visions 51. Reform in your country 52. Personal visions 53. Vision for a European Civil Code (in particular a gênerai clause) 5

G Possible directions 51. Swiss Draft art. 50 (1999)? 52. American Restatement on Torts 2d §§519, 520 (1976)? 5

IX

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Part II. Cases 5A. Scope (protective purpose) of strict liability norms 5

B. Notion of 'custodian/keeper' 6C. Excuses 6D. Channelling strict liability upon operator/license holder 6

Austria (Bernhard A. Koch and Helmut Koziol) 9

Part I. General Questions 9A. Légal basis 9

1. Strict liability versus fault liability - alternatives or grey areas in between?... 92. Other means of achieving strict liability 123. In which fields has strict liability been developed? 134. How do judges, when they interpret statutes or précédents, handle strict

liability? 145. Has a particular risk, once subjected to strict liability (by statute or case law),

later been reassigned to fault liability? 156. Does your law of contract offer the possibility of a claim based on strict

liability in cases where there is also a strict liability in tort? 15B. General characteristics 15

1. What does strict liability attach to? 152. Which factors justify strict liability? 193. Strict liability in favour of the environment, télécommunications, others 204. Who is liable? 225. Where and to what extent do you hâve a channelling of liability? 246. Which defences? 257. Other factors pointing away from strict liability 28

C. Rules differing from gênerai tort law 281. Causation 282. Protective purpose of the statute 303. Type of damages 304. Amount of damages 315. Time limits 336. Vicarious liability 33

D. Cumulation of strict liability and fault liability? 33E. Interrelation with other compensation Systems 34

1. Insurance (compulsory or not) 342. Social security 343. Workers' compensation 354. Compensation fund 35

F. Visions 351. Reform in Austria 352. Personal visions 363. Vision for a European Civil Code (in particular a gênerai clause) 37

Contents xi

G. Possible directions 371. Swiss Draft art. 50 (1999)? 372. American Restatement on Torts 2d §§ 519, 520 ( 1976)? 37

Part II. Cases 38A. Scope (protective purpose) of strict liability norms 38B. Notion of 'custodian/keeper' 39C. Excuses 39D. Channelling strict liability upon operator/license holder 40

Belgium (Herman Cousy and Dimitri Droshout) 43

Part I. General Questions 43Preliminary remarks 43A. Légal basis 45

1. Strict liability versus fault liability - alternatives or grey areas in between?... 452. Other means of achieving strict liability 473. In which fields has strict liability been developed? 484. How do judges, when they interpret statutes or précédents, handle strict

liability? 585. Has a particular risk, once subjected to strict liability (by statute or case law),

later been reassigned to fault liability? 606. Does your law of contract offer the possibility of a claim based on strict

liability in cases where there is also a strict liability in tort? 61B. General characteristics 61

1. What does strict liability attach to? 612. Which factors justify strict liability? 623. Strict liability in favour of the environment, télécommunications, others 624. Who is liable? 655. Where and to what extent do you hâve a channelling of liability? 656. Which defences? 66

C. Rules differing from gênerai tort law 681. Causation 683. Type of damages 694. Amount of damages 705. Time limits 70

D. Cumulation of strict liability and fault liability? 71E. Interrelation with other compensation Systems 71

1. Insurance (compulsory or not) 712. Social securiry 713. Workers' compensation 71

Part II. Cases 72A. Scope (protective purpose) of strict liability norms 72B. Notion of 'custodian/keeper' 73

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C. Excuses 73D. Channelling strict liability upon operator/license holder 74

Czech Republic (Lubos Tichy) 75

Part I. General Questions 75A. Légal basis 75Introduction 75

1. Strict liability versus fault liability - alternatives or grey areas in between?... 772. Other means of achieving strict liability 813. In which fields has strict liability been developed? 824. How do judges, when they interpret statutes or précédents, handle strict

liability? 835. Has a particular risk, once subjected to strict liability (by statute or case law),

later been reassigned to fault liability? 846. Does your law of contract offer the possibility of a claim based on strict

liability in cases where there is also a strict liability in tort? 84B. General characteristics 84

1. What does strict liability attach to? 842. Which factors justify strict liability? 863. Strict liability in favour of the environment, télécommunications, others 864. Who is liable? 865. Where and to what extent do you hâve a channelling of liability? 886. Which defences? 897. Other factors pointing away from strict liability 91

C. Rules differing from gênerai tort law 921. Causation 922. Protective purpose of the statute 923. Type of damages 934. Amount of damages 935. Time limits 94

D. Cumulation of strict liability and fault liability 94E. Interrelation with other compensation Systems 95

1. Insurance (compulsory or not) 952. Social security and 3. Workers' compensation 954. Compensation fund 96

F. Visions 961. Reform in the Czech Republic 962. Personal visions 963. Vision for a European Civil Code (in particular a gênerai clause) 97

G Possible directions 97

Part II. Cases 97A. Scope (protective purpose) of strict liability norms 97B. Notion of 'custodian/keeper' 98

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C. Excuses 98D. Channelling strict liability upon operator/license holder 99

England (W. V. Horton Rogers) 101

Part I. General Questions 101A. Légal basis 101

1. Strict liability versus fault liability - alternatives or grey areas in between?... 1012. Other means of achieving strict liability 1043. In which fields has strict liability been developed? 1064. How do judges, when they interpret statutes or précédents, handle strict

liability? 1095. Has a particular risk, once subjected to strict liability (by statute or case law),

later been reassigned to fault liability? 1096. Does your law of contact offer the possibility of a claim based on strict

liability in cases where there is also a strict liability in tort? 109B. General characteristics 110

1. What does strict liability attach to? 1102. Which factors justify strict liability? 1153. Strict liability in favour of the environment, télécommunications, others 1164. Who is liable? 1165. Where and to what extent do you hâve a channelling of liability? 1176. Which defences? 1177. Other factors pointing away from strict liability 119

C. Rules differing from gênerai tort law 1201. Causation 1202. Protective purpose of the statute 1203. Type of damages 1204. Amount of damages 1215. Time limits 121

D. Cumulation of strict liability and fault liability? 122E. Interrelation with other compensation Systems 122F. Visions, possible directions 122

Part II. Cases 124A. Scope (protective purpose) of strict liability norms 124B. Notion of 'custodian/keeper' 125C. Excuses 125D. Channelling strict liability upon operator/license holder 126

France (Suzanne Galand-Carval) 127

Part I: General Questions 127A. Légal basis 127

1. Strict liability versus fault liability - alternatives or grey areas in between?. . . 1272. Other means of achieving strict liability 129

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3. In which fields has strict liability been developed? 1304. How do judges, when they interpret statutes or précédents, handle strict

liability? 1315. Has a particular risk, once subjected to strict liability (by statute or case law),

later been reassigned to fault liability (by the legislator or the judge)? 1316. Does your law of contract offer the possibility of a claim based on strict liability

in cases where there is also a strict liability in tort? 131B. General characteristics 132

1. What does strict liability attach to? 1322. Which factors justify strict liability? 1354. Who is liable? 1355. Where and to what extent do you hâve a channelling of liability? 1376. Which defences? 137

C. Rules differing from gênerai tort law 1381. Causation 1382. Protective purpose rule 1393. Type of damages 1394. Amount of damages 1405. Time limits 140

D. Cumulation of strict liability and fault liability 140E. Interrelation with other compensation Systems 141

1. Insurance 1412. Social security. 1413. Workers' compensation 1414. Compensation funds 142

F. Visions/G Possible directions 142

Part IL Cases 142A. Scope (protective purpose) of strict liability norms 142B. Notion of 'custodian/keeper' 143C. Excuses 144D. Channelling strict liability upon operator/license holder 145

Germany (Jôrg Fedtke and Ulrich Magnus) 147

Part I. General Questions 147A. Légal basis 147

1. Strict liability versus fault liability - alternatives or grey areas in between?.. 1472. Other means of achieving strict liability 1513/4. In which fields has strict liability been developed? 4. How do judges, when they

interpret statutes or précédents, handle strict liability? 1525. Has a particular risk, once subjected to strict liability (by statute or case law),

later been reassigned to fault liability? 1546. Does your law of contract offer the possibility of a claim based on strict

liability in cases where there is also a strict liability in tort? 154

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B. General characteristics 1541. What does strict liability attach to? 1542. Which factors justify strict liability? 1563. Strict liability in favour of the environment, télécommunications, others 1574. Who is liable? 1615. Where and to what extent do you hâve a channelling of liability? 1626. Which defences? 1627. Other factors pointing away from strict liability 165

C. Rules differing from gênerai tort law 1651. Causation 1652. Protective purpose of the statute 1663. Type of damages 1664. Amount of damages 1675. Time limits 169

D. Cumulation of strict liability and fault liability? 169E. Interrelation with other compensation Systems 170

1. Insurance (compulsory or not) 1702/3. Social security and workers' compensation 1704. Compensation fund 171

F. Visions 1711. Reform in Germany 1712. Personal visions 1723. Vision for a European Civil Code (in particular a gênerai clause) 172

G Possible directions 172

Part II. Cases 173A. Scope (protective purpose) of strict liability norms 173B. Notion of 'custodian/keeper' 174C. Excuses 174D. Chanelling strict liability upon operator/license holder 175

Greece (Konstantinos D. Kerameus) 177

Part I. General Questions 177A. Légal basis 177B. General characteristics 178C. Rules differing from gênerai tort law 179

Part II. Cases 180A. Scope (protective purpose) of strict liability norms 180B. Notion of 'custodian/keeper' 181C. Excuses 181D. Channelling strict liability upon operator/license holder 181

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Israël (Israël Gilead) 183

Part I. General Questions 183A. Légal basis 183

1. Strict liability versus fault - alternatives or grey areas in between? 1832. Other means of achieving strict liability 1863. In which fields has strict liability been developed? 1874. How do judges, when they interpret statutes or précédents, handle strict

liability? 1925. Has a particular risk, once subjected to strict liability (by statute or case law)

later been reassigned to fault liability? 1936. Does your law of contract offer the possibility of a claim based on strict

liability in cases where there is also a strict liability in tort? 194B. General Characteristics 194

1. What does strict liability attach to? 1942. Which factors justify strict liability? 1953. Strict liability in favour of the environment, télécommunications, others 1974. Who is liable? 1975. Where and to what extent do you hâve a channelling of liability? 1986. Which defences? 1987. Other factors pointing away from strict liability 200

C. Rules differing from gênerai tort law 2011. Causation 2012. Protective purpose of the statute 2023. Type of damages 2024. Amount of damages 2025. Time limits 202

D. Cumulation of strict liability and fault liability? 203E. Interrelation with other compensation Systems 203F-G Visions and directions 203

1. Reform 2032. Personal vision - possible directions 204

Part II. Cases 204A. Scope (protective purpose) of strict liability norms 204B. Notion of 'custodian/keeper' 204C. Excuses 205D. Channelling strict liability to operator/license holder 205

Italy (F.D. Busnelli and Giovanni Comandé) 207

Introduction to 'stricter' liability under Italian law 207Summary of légal rules 209

1. Liability for acts committed by others 2092. Liability for rights over goods or animais 211

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3. Liability connected to the exercise of dangerous activities 2124. Risks deriving from industrial activities with spécifie référence to the

protection of consumers or the environment 2145. Spécifie environmental damage 2166. Prévention of underground water pollution by certain dangerous substances and

other sources of pollution 216

Part I. General Questions 216A. Légal basis 216

1. Strict liability versus fault liability - alternatives or grey areas in between?... 2162. Other means of achieving strict liability 2173. In which fields has strict liability been developed? 2174. How do judges, when they interpret statutes or précédents, handle strict

liability? 2185. Does your law of contract offer the possibility of a claim based on strict

liability in cases where there is also a strict liability in tort? 218B. General characteristics 218

1. What does strict liability attach to? 2182. Which factors justify strict liability? 2193. Strict liability in favour of the environment, télécommunications, others 2194. Who is liable? 2205. Where and to what extent do you hâve a channelling of liability? 2226. Which defences? 222

C. Rules differing from gênerai tort law 2221. Causation 2222. Protective purpose of the statute 2233. Types of damages 2234. Amount of damages 2235. Time limits 223

D. Cumulation of strict liability and fault liability? 224E. Interrelation with other compensation Systems 224F. Visions 224G Possible directions 225

Part IL Cases 225A. Scope (protective purpose) of strict liability norms 225B. Notion of 'custodian/keeper' 225C. Excuses 226D. Channelling strict liability upon operator/license holder 226

Netherlands (Edgar du Perron and Willem H. van Boom) 227

Part I. General questions 227A. Légal basis 227

1. Strict liability versus fault liability - alternatives or grey areas in between?... 227

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2. Other means of achieving strict liability 2303. In which fields has strict liability been developed? 2324. How do judges, when they interpret statutes or précédents, handle strict

liability? 2445. Has a particular risk, once subjected to strict liability (by statute or case law),

later been reassigned to fault liability? 2446. Does your law of contract offer the possibility of a claim based on strict

liability in cases where there is also a strict liability in tort? 244B. General characteristics 244

1. What does strict liability attach to? 2442. Which factors justify strict liability? 2453. Strict liability in favour of the environment, télécommunications, others 2454. Who is liable? 2455. Where and to what extent do you hâve a channelling of liability? 2466. Which defences? 2467. Other factors pointing away from strict liability 247

C. Rules differing from gênerai tort law 2481. Causation 2482. Protective purpose of the statute 2483. Type of damages 2484. Amount of damages 2485. Time limits 249

D. Cumulation of strict liability and fault liability? 249E. Interrelation with other compensation Systems 250

1. Insurance (compulsory or not) 2502. Social security 2513. Workers' compensation 2514. Compensation fund 251

F. Visions 2511. Reform in the Netherlands 2512. Visions for a European Civil Code 251

G Possible directions 252

Part IL Cases 252A. Scope (protective purpose) of strict liability norms 252B. Notion of 'custodian/keeper' 253C. Excuses 254D. Channelling strict liability upon operator/license holder 255

Poland (Miroslaw Nesterowicz and Ewa Baginska) 257

Part I. General Questions 257A. Légal basis 257

1. Strict liability versus fault liability - alternatives or grey areas in between?... 2572. Other means of achieving strict liability 257

Contents xix

3. In which fields has strict liability been developed? 2584. How do judges, when they interpret statutes or précédents, handle strict

liability? 2585. Has a particular risk, once subjected to strict liability (by statute or case law)

later been reassigned to fault liability? 2596. Does your law of contract offer the possibility of a claim based on strict

liability in cases where there is also a strict liability in tort? 259B. General characteristics 259

1. What does strict liability attach to? 2592. Which factors justify strict liability? 2613. Strict liability in favour of the environment, télécommunications, others 2614. Who is liable? 2615. Where and to what extent do you hâve a channelling of liability? 2626. Which defences 2627. Other factors pointing away from strict liability 263

C. Rules differing from gênerai tort law 2631. Causation 2632. Protective purpose of the statute 2633. Type of damages 2634. Amount of damages 2645. Time limits 264

D. Cumulation of strict liability and fault liability? 265E. Interrelation with other compensation Systems 265

1. Insurance (compulsory or not) 2652. Social security 2653. Workers' compensation 2664. Compensation fund 266

F. Visions 266G Possible directions 267

Part II. Cases 267A. Scope (protective purpose) of strict liability norms 267B. Notion of 'custodian/keeper' 268C. Excuses 268D. Channelling strict liability upon operator/license holder 268

South Africa (Johann Neethling) 269

Part I. General Questions 269A. Légal basis 269

1. Strict liability versus fault liability - alternatives or grey areas in between?... 2692. Other means of achieving strict liability 2703. In which fields has strict liability been developed? 2714. How do judges, when they interpret statutes or précédents, handle strict

liability? 272

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5. Has a particular risk, once subjected to strict liability (by statute or case law),later been reassigned to fault liability? 272

6. Does your law of contract offer the possibility of a claim based on strictliability in cases where there is also a strict liability in tort? 273

B. General characteristics 2731. What does strict liability attach to? 2732. Which factors justify strict liability? 2733. Strict liability in favour of the environment, télécommunications, others 2744. Who is liable? 2745. Where and to what extent do you hâve a channelling of liability? 2756. Which defences? 2757. Other factors pointing away from strict liability 276

C. Rules differing from gênerai tort law 2761. Causation 2762. Protective purpose of the statute 2773. Type of damages 2774. Amount of damages 2775. Time limits 277

D. Cumulation of strict liability and fault liability? 277E. Interrelation with other compensation Systems 278F. Visions 278

1. Reform in South Africa 2782. Personal visions 2783. Vision for a European Civil Code (in particular a gênerai clause) 278

G Possible directions 278

Part IL Cases 279A. Scope (protective purpose) of strict liability norms 279B. Notion of 'custodian/keeper' 279C. Excuses 279D. Channelling strict liability upon operator/license holder 279

Spain (Miquel Martin-Casals, Jordi Ribot and Josep Sole) 281

Part I. General Questions 281A. Légal basis 281

1. Strict liability versus fault liability - alternatives or grey areas in between?... 2812. Other means of achieving strict liability 2883. In which fields has strict liability been developed? 2904. How do judges, when they interpret statutes or précédents, handle strict

liability? 2935. Has a particular risk, once subjected to strict liability (by statute or case law),

later been reassigned to fault liability? 2946. Does your law of contract offer the possibility of a claim based on strict

liability in cases where there is also a strict liability in tort? 294

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B. General characteristics 2951. What does strict liability attach to? 2952. Which factors justify strict liability? 3013. Strict liability in favour of the environment, télécommunications, others 3024. Who is liable? 3025. Where and to what extent do you hâve a channelling of liability? 3066. Which defences? 3067. Other factors pointing away from strict liability 309

C. Rules differing from gênerai tort law 3091. Causation 3092. Protective purpose of the statute 3103. Type of damages 3114. Amount of damages 3115. Time limits 312

D. Cumulation of strict liability and fault liability? 313E. Interrelation with other compensation Systems 314

1. Insurance (compulsory or not) 3142. Social security/3. Workers' compensation 3154. Compensation fund 315

F. Visions 3151. Reform in Spain 3152. Personal visions 3163. Vision for a European Civil Code (in particular a gênerai clause) 316

Part IL Cases 316A. Scope (protective purpose) of strict liability norms 316B. Notion of 'custodian/keeper' 318C. Excuses 319D. Channelling strict liability upon operator/license holder 321

Switzerland (Pierre Widmer) 323

Part I. General questions 323A. Légal basis 323

1. Strict liability versus fault liability - alternatives or grey areas in between?... 3232. Other means of achieving strict liability 3263. In which fields has strict liability been developed? 3264. How do judges, when they interpret statutes or précédents, handle strict

liability? 3295. Has a particular risk, once subjected to strict liability (by statute or case law),

later been reassigned to fault liability? 3296. Does your law of contract offer the possibility of a claim based on strict

liability in cases where there is also a strict liability in tort? 330B. General characteristics 330

I. What does strict liability attach to? 330

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2. Which factors justify strict liability? 3323. Strict liability in favour of the environment, télécommunications, others 3344. Who is liable? 3365. Where and to what extent do you hâve a channelling of liability? 3376. Which defences? 3387. Other factors pointing away from strict liability 339

C. Rules differing from gênerai tort law 3401. Causation 3402. Protective purpose of the statute 3413. Type of damages 3424. Amount of damages 3435. Time limits 343

D. Cumulation of strict liability and fault liability? 344E. Interrelation with other compensation Systems 345

1. Insurance (compulsory or not) 3452. Social security 3453. Workers' compensation 3464. Compensation fund 346

F. Visions 3461. Reform in S witzerland 3462. Personal visions 3463. Vision for a European Civil Code (in particular a gênerai clause) 347

G Possible directions 3471. Swiss Draft art. 50 (1999)? 3472. American Restatement on Torts 2d §§ 519, 520 ( 1976)? 347

Part II. Cases 348A. Scope (protective purpose) of strict liability norms 348B. Notion of 'custodian/keeper' 349C. Excuses 349D. Channelling strict liability upon operator/license holder 349

United States (Gary T. Schwartz) 351

Part 1. General Questions 351A. Légal basis 351

1. Strict liability versus fault liability - alternatives or grey areas in between?... 3512. Other means of achieving strict liability 3523. In which fields has strict liability been developed? 3534. How do judges, when they interpret statutes or précédents, handle strict

liability? 3535. Has a particular risk, once subjected to strict liability (by statute or case law),

later been reassigned to fault liability? 3546. Does your law of contract offer the possibility of a claim based on strict

liability in cases where there is also a strict liability in tort? 354

Contents xxiii

B. General characteristics 3541. What does strict liability attach to? 3542. Which factors justify strict liability? 3553. Strict liability in favour of the environment, télécommunications, others 3554. Who is liable? 3555. Where and to what extent do you hâve a channelling of liability? 3566. Which defences? 3567. Other factors pointing away from strict liability 357

C. Rules differing from gênerai tort law 3571. Causation 3572. Protective purpose of the statute 3583. Type of damages 3584. Amount of damages 3585. Time limits 358

D. Cumulation of strict liability and fault liability? 358E. Interrelation with other compensation Systems 358F. Visions 358G Possible directions 359

Part II. Cases 359A. Scope (protective purpose) of strict liability norms 359B. Notion of 'custodian/keeper' 359C. Excuses 359D. Channelling strict liability upon operator/license holder 360

Economie Analysis (Michael Faure) 361

I. Introduction 361II. Various légal forms of strict liability 361A. Injurers with lower qualifications 362B. Breach of a statutory duty 362C. Reversai of the burden of proof 363III. Economie criteria for strict liability 364A. The test for strict liability 364

1. Optimal prévention: the unilatéral setting 3642. The bilatéral setting 3643. The activity level 3664. A test 367

B. A few refinements 367C. Législation or case law? 369IV. Examples of strict liability 370A. Strict liability in (Belgian) tort Law 370B. Economie analysis 371C. Environmental damage 372D. Reassignment of liability rules 374

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V. Strict liability in contract situations 376A. Basic économie analysis of product liability 376

1. Coasean bargaining 3762. Strict liability for 'full internalisation' 3773. Victim's care 3784. Market power 3785. Attitudes toward risk and insurance 379

B. Some économie effects of the EC Directive on Product Liability of 25 July 1985. 380C. Récent developments 383

1. Including primary agricultural products 3832. Green Paper on liability for defective products 384

VI. Issues related to strict liability 386A. Channelling of liability 386B. Financial caps 387C. Compulsory insurance? 389

1. The duty to insure 3892. Increasing the expected utility 3893. Informational asymmetry 3894. Insolvency 390

5. Two further conditions 390D. Statutes of limitations 391E. Rétroactive strict liability? 392F. Development risk 393VII. Concluding remarks 393

Comparative Conclusions (Bernhard A. Koch and Helmut Koziol) 395

Introduction 3951. Terminology 3952. Inventory 395

a) General clause(s) or enumeration of singular risks? 395b) Rules focusing on the cause of harm 395c) Rules focusing on the harm itself 404

3. Conclusion 406II. Justifications 407

1. Arguments focusing on the cause of harm 407a) Dangerousness in gênerai 407b) Singular dangerousness 408c) Ability to avoid the actual harm 409d) Prévention of harm in gênerai 410

2. Arguments focusing on the harm itself 4103. Arguments focusing on the availability of compensation 411

a) 'Structural weakness' of the victim 411b) Vicarious liability concepts 411c) Deep pocket arguments 411

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4. Arguments focusing on the interests involved 412a) Benefit/profit 412b) Risk/loss sharing 412c) Public interest in favour of the source of harm 412

5. Summary 413III. Who is liable? 413

1. Keeper, possessor, custodian, person in control 413a) Dangers 413b) Other sources 417c) Case 6 417d) Conclusions 418

2. Incapable persons 4193. Unauthorized persons 4194. Channelling 419

IV. Defences 4201. Inventory 420

a) Arguments beyond the sphère of both plaintiff and défendant 420b) Arguments concerning the défendant's sphère 421c) Arguments concerning the plaintiff's sphère 422

2. Summary 424V. Spécifie features 425

1. Causation 425a) Presumption of causation 425b) Conflicting causes (strict + strict, strict + fault) 425

2. Protective purpose of the norm 4263. Type of loss covered 4274. Amount of damages 428

a) Caps 428b) Mitigation of damages 429c) Thresholds 429

5. Time limits 429VI. Interrelation with other compensation Systems 430VII. Cumulation of strict and fault liability 432VIII. Catégories between strict and fault liability ('grey" areas) 432

Index 437