Tort Law and Liability Insurance

Introduction

Already for a longer period of time the Centre had considered the mutual instruments of tort and insurance as highly important. A project in which these interdependencies between liability law and insurance would be examined more closely had been on the agenda of the Centre for a longer period of time. It is definitely a project and topic which is of high importance.

Indeed, one has often heard claims that the expanding liability law, which we can notice today in Europe, would to a large extent be due to the increasing possibilities of insurance. Hence, this argument holds that insurability leads to increased liability. Some even hold that in specific cases a judge would take into account the specific availability of insurance when deciding a case. Assurance oblige, this is sometimes referred to.

Mutual dependencies between tort and insurance should, however, not necessarily give rise to an expansion of liability. Indeed, in some cases pleas can also be heard in favour of a limitation of liability, in order to keep a risk insurable. Thus one can hear some people explicitly argue that insurability should be an argument that one should take into account to determine the scope of liability. Some have even argued in favour of financial caps (limits on liability) because unlimited liability would be uninsurable.

Although these issues are definitely highly topical and important, both from an academic as well as from a policy perspective, it is less easy to determine how a project examining these specific issues should be set up. More specifically, the question arises how these issues could be examined in a comparative perspective.

Indeed, one problem is that many practising lawyers, insurers and academics may have a "feeling" that tort law and insurance are mutually dependent upon each other, as was sketched above. However, very often these types of dependencies might not appear in the texts produced. Therefore it may be less easy to determine to what extent e.g. in a specific case the judge actually did take into account the availability of insurance when deciding the liability issue. This project in that respect is thus different from the ones dealt with so far by the Centre.

Publication

The publication starts with country reports (Austria, England and Wales, Germany, Italy, Sweden and Switzerland) based on a questionnaire.
In a second part, general approaches are dealt with, namely a report by Jaap Spier about the need for more and detailed information, an economic analysis by Michael Faure, the view from abroad (USA, Thomas S. Ullen), the view of an Insurer (Peter Thalmair), the view of a Reinsurer (Christian Lahnstein) and the view of an American Insurance Law Scholar (Tom Baker).
Finally, Gerhard Wagner gives a Comparative Report and Final Conclusions.

The reports submitted for this project have been published in Volume 16 of ECTIL's series "Tort and Insurance Law" under the title "Tort Law and Liability Insurance". The editor is Gerhard Wagner.