Download Aggregation and Divisibility of Damage (Tort and Insurance by Ken Oliphant PDF

By Ken Oliphant

No matter if the damage for which repayment is sought in an motion in tort is thought of as a unmarried indivisible loss or a plurality of losses may have a few very important ramifications for the legislation of tort, for instance, in contemplating compensable harm, the apportionment of accountability among a number of tortfeasors, and the applying of trouble sessions and (where they exist) caps and thresholds. those concerns can have specific importance within the context of mass torts, and lift questions of personal foreign legislation and civil technique in addition to considerable tort legislation. also they are of substantial sensible value for insurers. during this comparative research, kingdom stories from twelve felony structures and designated experiences on deepest overseas legislation and assurance supply an perception into the interplay of tort legislations, civil technique, and coverage during this hitherto principally missed sector of felony technology.

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It must first be pointed out that in Austria employers’ liability will regularly be precluded on the basis of the employer’s liability privilege anchored in § 333 of the General Social Insurance Act (Allgemeines Sozialversicherungsgesetz, ASVG). Thus, the compensation for harm incurred will be awarded within the framework of the social insurance law. If we set this aside for now and look at the problem purely from a tort law perspective, then we must distinguish as follows: if each of the employers (D1, D2, D3) acted unlawfully, culpably and so as to pose a concrete danger, but only one of them actually caused the damage and if it is not possible to establish which one this is, then this is a case of alternative causation, which by analogy to § 1302 ABGB would lead to the joint and several liability of D1, D2 and D3.

2007) § 1489 no. 9, with further references. Koziol (fn. 2) no. 15/19; OGH 2 Ob 58, 59/91 = JBl 1993, 726 noted by Ch. Huber. OGH 6 Ob 366/66 = Entscheidungen des OGH in Zivil- und Justizverwaltungssachen (SZ) 39/222 = EvBl 1967/303; 5 Ob 179/72 = JBl 1973, 372 = Evidenzblatt der Rechtsmittelentscheidungen (EvBl) 1973/88; OGH 5 Ob 1/85 = JBl 1986, 108 noted by W. Selb; OGH 2 Ob 58, 59/91 = JBl 1993, 726 noted by Ch. Huber. See also Koziol (fn. 2) no. 15/11, with further references. OGH 1 Ob 621/95 = SZ 68/238.

Are the payments to B and C regarded as consequential losses that are part of the overall damage caused by D, or as independent losses that have to be addressed separately? What are the commencement dates for the limitation periods applying to P’s recourse actions in respect of his payments to A, B, and C? 22 According to the definition of consequential loss given in the answer to Question 5 (see supra no. 17), the payments to A, B, and C must be regarded as con- Austria: Tort Law 21 sequential loss sustained by P since they are a consequence of a primary loss (physical harm = damage to property).

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