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References
J. Spier (ed.) Unification of Tort Law: Causation (2000, hereafter cited as PETL Causation). See also Ch. von. Bar, The Common European Law of Torts II (2000) no. 411 et seq.
See General Introduction, no. 40.
Art. 4:102 in their latest version (June 2004).
As the previous footnote.
See infra no. 8 et seq.
Ch. von Bar (supra fn. 1) no. 415 apparently faced the same problem.
Cf. infra Art. 3:104 no. 3.
It should be borne in mind that Art. 3:103 para. 2 is quite a step for the common law. If the likelihood is over 50% the victim is worse off; instead, he “gains” if it is below 50%. See this article and Art. 3:106.
In the sense of Chapter 6.
Supra Art. 3:102 no. 8 et seq.
See for the latter Art. 9:101 para. 1 (a).
This case is solved in a different way in various jurisdictions; see J. Spier/ O. Haazen, Comparative Conclusions on Causation, PETL Causation, 150 et seq.
If there is no adequate basis to establish the marketshare(s) of several of the remaining manufacturers, their part is presumed to be equal; see Art. 3:105.
Though it is not universally applied in the United States: Dan B. Dobbs, The Law of Torts (2000) 430 et seq.
See J. Spier/ O. Haazen, Comparative Conclusions on Causation, PETL Causation, 150 et seq.; and W.V.H. Rogers, Winfield and Jolowicz on Tort (2002) no. 6.11 and 6.12.
D. 9.2.51.pr. 2.
See J. Spier/ O. Haazen, Comparative Conclusions on Causation, PETL Causation, 128 et seq.
According to Art. 3:201 D1 will probably be liable for this fee too, in that the owner can only get compensation once. See Art. 9:102 for the recourse between D1 and D2.
Admittedly, it could be argued that loss of income is not continuing damage but loss of earning capacity, thus being a loss suffered at once. For the reasons set out under 13, we prefer to perceive it from a different angle. All the more so as it will often be unclear for quite some time whether and when the victim will be able to start working again, which may make it difficult to apply the concept of loss of earning capacity. Moreover, it is very unusual that this type of cases is settled soon. It rarely happens that the loss before the settlement is calculated on the basis of loss of earning capacity. After all, why should it, as it can easily be calculated very accurately. Finally, in several legal systems victims are entitled to a rent; see U. Magnus, Comparative Report on the Law of Damages, in U. Magnus (ed.), Unification of Tort Law: Damages (2001) 185 (no. 89).
On top of that P might have a claim for the increased chance that he might become disabled by a future accident which affects his remaining leg; see Art. 10:202.
PETL Causation, 3 et seq.
J. Spier/ O. Haazen, Comparative Conclusions on Causation, PETL Causation, 141 et seq.
The market share may be the decisive factor in this field; see Art. 3:103 para. 2 and the comment above.
J. Spier/ O. Haazen, Comparative Conclusions on Causation, PETL Causation 153.
See e.g. W.V.H. Rogers, Winfield & Jolowicz on Tort (2002) 218 et seq.
See also W. van Gerven et al., Tort Law (2000) 459 et seq.
W.V.H. Rogers (supra fn. 4) 219–220.
I.e. 5% in relation to the number of victims.
See for details J. Spier/ O. Haazen, Comparative Conclusions on Causation, PETL Causation, 153 et seq.
Art. 3:104 no. 5.
Art. 3:101 no. 1.
178 F. Supp. 2d 198 (E.D.N.Y.2001).
See J. Spier/ O. Haazen, Comparative Conclusions on Causation, PETL Causation, 134 et seq. This is not to say that every single factor plays a role in every jurisdiction. E.g., (b) is of no importance in Belgium. See also the reports by H. Koziol in J. Spier (ed.), The Limits of Expanding Liability (1998) 25 et seq., W.V.H. Rogers, 37 et seq. and J. Sinde Monteiro, 51 et seq.
See PETL Causation 17, 28, 45, 58, 70, 85, 98 and 124; slightly different p. 114. The Draft Articles of the Working Team on Extra-Contractual Obligations (see supra General Introduction, no. 40) explicitly address this issue in the sense mentioned in the text.
See PETL Causation case 1.
See case 6 in: J. Spier (ed.), The Limits of Expanding Liability; and PETL Causation case 15.
See PETL Causation in relation to case 2.
References
See J. Spier/ O.A. Haazen, Comparative Conclusions on Causation, in: J. Spier (ed.), Unification of Tort Law: Causation (2000) 127.
Meeting in Lausanne, 2 and 3 May 2003.
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Busnelli, F.D. et al. (2005). Causation. In: Principles of European Tort Law. Springer, Vienna. https://doi.org/10.1007/3-211-27751-X_4
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