Tort and Regulatory Law

The Problem

Every practising tort lawyer has to deal with administrative law rules. One is confronted with them when concerned with questions of liability based on fault as some of them are regarded as so-called protective laws, but they are also of more or less importance in the field of strict liability, for example with regard to product liability. It is thus not only overdue but also of high practical value to systematically analyse the interaction of administrative law and tort law. The project will focus mainly on safety regulations and provisions aiming at environmental protection.

Such rules regulate, for example, the disposal of dangerous waste and sewage, the safety of operational facilities, the licensing of potentially dangerous products such as drugs and chemicals, the safety of buildings, the protection of forests against fire, varmint and air pollution, and the protection against nuisance (noise, heat, smell, shocks). In many of the above-mentioned areas of law, rules of European law (directives and regulations) apply. As a consequence, one of the issues dealt with by this project will be the European dimension. In the following, some of the general problems posed will be outlined

A Breach of Rules of Administrative Law

In the field of liability based on fault one has to consider whether a breach of a rule of administrative law per se constitutes wrongfulness. In Austria, for example, the mere breach of such a rule is not sufficient, but it is required that the wrongdoer violated a duty of care, whereas in Germany the breach of a duty of care is part of the fault requirement. Thus, the seller of dangerous goods acts wrongfully in Germany merely by failing to comply with the relevant provisions of licensing, whereas in Austria he only does so if he violated a duty of care. If the tortfeasor acted wrongfully, one still has to consider the protective purpose of the rule. The legal systems of all the Member States of the European Union except for Belgium, France and Luxembourg require that a rule be established to protect the injured party from the damage suffered.

The tortfeasor may succeed in proving that he would also have caused the damage if he had acted lawfully. One has to consider if this may count as a defence. According to one part of legal scholarship, the answer to that question also depends on whether the aim of the rule in question is to guarantee a specific procedure which would have included certain guarantees for the injured party. Licensing requirements might be rules of that kind. If, for example, the manufacturer of a defective drug has failed to obtain a license therefor, he might be held liable even if he proves that the authority to whom he did not apply would have granted the license.

Acting in Compliance with Administrative Law Rules

One might argue that a tortfeasor who acted in compliance with all the relevant administrative law rules cannot be held liable as he fulfilled the maximum security requirements. One might equally argue, however, that these rules require only minimum standards. One thereby has to consider the different aims of administrative law on the one hand and tort law on the other: The former is based on general safety expectations, whereas tort law judges the concrete circumstances of the individual case.

Compensation from other Sources

So far, only problems of the law of delict have been mentioned. However, the duty to compensate damage for breach of an administrative law rule may also be founded in administrative law proper or in other rules. According to the Environmental Liabiltiy Directive, for example, (ultimately) polluters have to pay the costs of restoring the environment, even though this scheme does not fit into the tort law regime.

However, even if the tortfeasor acted in compliance with the relevant administrative law rules, he might still be obliged to pay damages for that very reason, as some legal systems provide for an indemnification claim in exchange for the duty to forbear certain activities which have been permitted under administrative law. It is of great interest whether such compensation schemes have been developed in the different participating countries.

Structure of the Study

This ECTIL study in cooperation with the Institute collected reports from nine Member States of the European Union (Austria, England and Wales, France, Germany, Hungary, Italy, the Netherlands, Poland and Spain) as well as from Norway, Switzerland and the United States of America. Moreover, special reports on the perspectives of administrative and regulatory law as well as an insurance perspective and an economic analysis are included. The results of the country and special reports are summarised in a comparative analysis, followed by conclusions.