By Ken Oliphant
No matter if the damage for which reimbursement is sought in an motion in tort is considered a unmarried indivisible loss or a plurality of losses may have a few vital ramifications for the legislation of tort, for instance, in contemplating compensable harm, the apportionment of accountability among a number of tortfeasors, and the appliance of hassle sessions and (where they exist) caps and thresholds. those matters can have specific importance within the context of mass torts, and lift questions of non-public foreign legislation and civil strategy in addition to substantive tort legislations. also they are of substantial sensible significance for insurers. during this comparative research, kingdom studies from twelve criminal platforms and distinct reviews on inner most overseas legislations and assurance supply an perception into the interplay of tort legislation, civil strategy, and assurance during this hitherto principally ignored quarter of criminal technological know-how.
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Extra info for Aggregation and Divisibility of Damage (Tort and Insurance Law)
56 According to the above (see supra no. ), each joint owner has the power to assert a claim for damages corresponding to his share of the joint property. Equally, the claim for restitution in kind is not a joint claim in the sense of § 848 ABGB; as has been correctly pointed out,47 this is why each joint owner can seek the reparation of the joint property autonomously. The decision on whether to pursue restitution in kind or damages is, however, a question of the joint will and must thus be taken on the basis of § 833 ff.
To deal with problems relating to the proof of causation – especially in mass tort scenarios – some jurisdictions have developed exceptional rules which allow for the imposition of liability on the basis of the defendant’s creation of a risk, whether or not it can be shown that the defendant’s conduct was a “but for” cause (sine qua non) of the victim’s injury. Does your national tort law recognise such rules? If so, what exactly is considered to be the loss the victim has sustained? 66 It has already been pointed out that independent perpetrators pursuant to § 1302 ABGB are jointly and severally liable if the proportions caused by them cannot be determined.
See also Koziol (fn. 2) no. 15/11, with further references. OGH 1 Ob 621/95 = SZ 68/238. Schadensentstehung und Verjährungsbeginn im österreichischen Recht, in: Festschrift für Steffen (1995) 65. 22 Ernst Karner/Olaf Riss claimant has already sustained a primary loss and it is foreseeable to him that further (secondary) losses will occur in the future. In this case, the limitation period commences with respect to all losses – even those occurring in the future – on the date when the claimant was able to foresee that he will sustain some more loss in the future.