Aggregation and Divisibility of Damage
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Beschreibung
Whether the harm for which compensation is sought in an action in tort is regarded as a single indivisible loss or a plurality of losses can have a number of important ramifications for the law of tort, for example, in considering compensable damage, the apportionment of responsibility between multiple tortfeasors, and the application of limitation periods and (where they exist) caps and thresholds. These issues may have particular significance in the context of mass torts, and raise questions of private international law and civil procedure as well as substantive tort law. They are also of considerable practical importance for insurers.
In this comparative study, country reports from twelve legal systems and special reports on private international law and insurance provide an insight into the interaction of tort law, civil procedure, and insurance in this hitherto largely neglected area of legal science.
Whether the harm for which compensation is sought in an action in tort is regarded as a single indivisible loss or a plurality of losses can have a number of important ramifications. If there are several losses, it may be that more than one of the claimant’s interests is affected and that only some of his losses are considered to be recoverable damage. Whether or not consequential loss is regarded as an independent harm, to be addressed separately, or as part of the whole damage also bears upon this question of recoverability, as well as upon the application of statutes of limitation of action. Where there exist liability caps and minimum damage thresholds, the question may arise whether these apply once only, to the whole of the claim, or to each of several different c- ponents of the overall claim. A plurality of losses may also be reflected in the application of the laws of contributory negligence. These problems relating to the divisibility of damage may be particularly pressing in cases where there are multiple claimants or multiple defendants. If two or more claimants have rights over the same damaged property (e. g. as joint owners or as owner and licensee), whether they are regarded as having suffered the same loss or independent losses may have implications for the claims they can bring.
Autor*in
Ken Oliphant
Themen in »Aggregation and Divisibility of Damage«
civil procedure claim damage thresholds insurance joint liability joint owners liability caps mass tort causation multiple claimants multiple defendants proof of causation recovery of costs