Strict Liability

الخلاصة

  خلا التشريع المقارن وقصر الفقه عن إيجاد تعريف للمنتوجات المتشابهة وكذلك المسؤوليّة المدنيّة الجماعيّة الناجمة عن أضرارها، وبشكل عام يمكننا تعريف المنتوجات المتشابهة بأنها: (المحاصيل المعدة للاستخدام والاستهلاك والمتشابهة من حيث الخصائص والعمل والغاية ولكن لمنتجين مختلفين). والمنتوجات المتشابهة من حيث النوع كثيرة جداً ومتعددة، ولا يمكن حصرها في أي حالٍ من الأحوال، وأنّ هذه المنتوجات أو السلع في تطوّر وتزايد دائم مع التطور الذي تشهده البشرية؛ فضلاً عن إزدياد رغبات وحاجات الإنسان في حياته اليومية.
  أما بالنسبة للمسؤولية المدنيّة الجماعيّة، فهي عبارة عن: (التزام مجموعة من الأشخاص بجبر الضرر عند تعذر معرفة الفاعل بينهم، وذلك بسبب عدم تمكّن المتضرر من إثبات الرابطة السببيّة بالشكل المعهود بين الفعل المتسبّب بالضرر والضرر الذي أصابه). والطبيعة القانونيّة للمسؤولية المدنيّة الجماعيّة عن أضرار المنتوجات المتشابهة، هي ذات طبيعة تقصيرية، ولا يمكن في أيّ حال من الأحوال تصوّر الطابع العقدي لها، لأنه لو أمكن ذلك لتمكّنا من تعيين المتسبّب بالضرر أو المتسبّبين به، ومن ثم نخرج من نطاق المسؤوليّة المدنيّة الجماعيّة؛ وذلك لسقوط شرطها ألا وهو عدم التمكّن من تمييز الطرف المتسبّب بالضرر من بين المجموعة، وندخل في نطاق المسؤوليّة المدنيّة العقدية.
  ومن خلال بحثنا ظهر لنا، أنه لا يمكن الاعتماد على الأسس التقليدية لقيام المسؤوليّة المدنيّة كالنظرية الشخصية والنظرية الموضوعية كأسس لقيام المسؤوليّة المدنيّة الجماعيّة بشكل عام والمسؤوليّة المدنيّة الجماعيّة عن أضرار المنتوجات المتشابهة بشكل خاص، وقد ظهرت في هذا الصدد أسس حديثة للمسؤولية المدنيّة عن المنتوجات، ومن ضمنها المسؤوليّة الجماعيّة عن المنتوجات، فهي ثلاثة أنواع، وكالآتي: الإهمال (Negligence)، والمسؤوليّة الصارمة (Strict Liability)، وخرق الضمان (Breach of Warranty)، إذ بإمكاننا الاتكاء عليها كأسس للمسؤولية المدنيّة عن أضرار المنتوجات عموماً، والمسؤوليّة المدنيّة الجماعيّة عن أضرار المنتوجات المتشابهة على وجه الخصوص.
  إنّ الإدعاء في الدعوى المدنيّة الجماعيّة الناجمة عن أضرار المنتوجات المتشابهة يكون إمّا بصورة فردية، أو بصورة جماعية، وفيما يخصّ تعويض المتضرّر فلا بُدَّ للتشريع من فرض التأمين الإجباري على المسؤوليّة الناجمة عن أضرار المنتوجات، وإن لم يكفِ مبلغ التأمين فلا بُدَّ من صندوق ضمان، وذلك لضمان حصول المتضرّر على التعويض العادل.

L’Autore, dopo una breve introduzione, offre una panoramica dei principali sviluppi giurisprudenziali e dottrinali che hanno interessato, dal 2008 al 2018, l’art. 2050 c.c. (responsabilità per l’esercizio di attività pericolosa). Dapprima, si analizzano, in particolare, la nozione di attività pericolosa e la prova liberatoria prevista dalla disposizione in esame. Dopodiché, il contributo ripercorre sinteticamente la casistica giurisprudenziale che si è sviluppata nell’ultimo decennio, al fine di orientare l’interprete tra le applicazioni più diffuse della norma.

The European Parliament has proposed legal personhood for artificial intelligence entities, to ensure honouring of rights and responsibility. The article discusses the question of legal personhood for non-human beings from a legal-historical and legal-sociological perspective. In addition, it examines legal personhood in the modern German legal system and discusses the implementation of a tertium genus for artificial intelligence as proposed by the European Parliament. This analysis leads to the conclusion that introduction of e-personhood would constitute a paradigm shift that blurs the boundaries between humans and machines.

According to conventional wisdom, negligence is a unique tort. It is different from strict liability because it is based on fault. Although it shares fault with intentional torts, negligence's version of fault is different because it arises from the objective standard of reasonableness.

En el capítulo se analiza, en primer término, qué tipo de responsabilidad es la que recae sobre los superiores respecto del delito de genocidio cometido por sus subordinados, conforme la jurisprudencia del TPIY. En segundo lugar, y en virtud de las conclusiones allí arribadas, cuál es el mens rea requerido para que respondan por dichos actos.

This dissertation examines the World Anti-Doping Agency’s harmonised set of anti-doping rules, known as the World Anti-Doping Code. The predominant focus of this study is the consequences which an athlete faces when confronted with the accusation that he or she has committed an anti-doping rule violation. The fundamental principles and rights as articulated in international human rights instruments, namely the European Convention on Human Rights and the International Covenant on Civil and Political Rights, will be referred to throughout this study and are the barometer for determining whether the rules of the Code sufficiently protect the rights of the athlete.

The rationales which underpin the World Anti-Doping Code will be critically analysed and an informed assessment will be made as to whether the myriad of justifications for these harmonised set of anti-doping rules are sufficiently compelling in light of the affects that an anti-doping rule violation has on inter alia the livelihood and reputation of the athlete.

This study affirms that the World Anti-Doping Code is neither justifiable in its current format nor does it sufficiently protect the rights of the modern athlete.

The purpose of this paper is to offer a pedagogical road map for an alternative way to engage students when arriving at the torts portion of the business law or legal environment course. It is designed to encourage utilizing sports cases and sport-related videos when teaching torts which can be effective and energizing. My research demonstrates that the prominence of sports related tort cases and examples are much more apparent in the negligence and intentional tort categories than in products liability or strict liability. More specifically, an effective way to relate the concept of negligence in sports is in the context of flying objects such as foul balls, bats, and hockey pucks. Incorporating intentional torts and sports usually begins with hits after the play, a pitcher intentionally hitting the batter, and the incidents of violence involving participants, fans, referees, coaches and parents. One of the best examples of products liability is the safety debate between using wooden baseball bats in professional baseball and the metal or aluminum bats in college baseball. Strict liability involving ultra-hazardous activities has its place for discussion in sports torts, but the breadth of litigation on the subject is clearly the least common of the four major tort categories rendering it virtually non-existent. Instructors are given hints as to how to engage students with sports torts regardless of their educational generation. Contemporary and classic cases are provided as examples.

The primary purpose of this article is to challenge the proposition that the rule in Rylands v Fletcher is best regarded as an offshoot of the tort of private nuisance, being an extension of that cause of action to isolated escapes. This offshoot theory was endorsed by the House of Lords in Transco Plc v Stockport MBC [2003] UKHL 61, [2003] 3 WLR 1467, and can now be described as the new orthodoxy. It is argued, however, that the offshoot theory should be rejected, since (1) analysis of the Rylands v Fletcher case provides little support for the theory; (2) there are well-established distinctions between the rule in Rylands v Fletcher and private nuisance; (3) merger with the rule will be bad for nuisance; and (4) the version of the strict liability rule to which the offshoot theory has given rise is unappealing. By way of contrast to the offshoot theory, the distinctiveness of the rule in Rylands v Fletcher is asserted. Consideration is also given to Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, where the High Court of Australia held that the rule in Rylands v Fletcher should be treated as having been absorbed by the principles of ordinary negligence, as well as to the desirability of a strict liability rule independent of nuisance.

Keywords: tort law, Rylands v Fletcher, strict liability, private nuisance, negligence.

Dietro all’apparente semplicità della regola prevista dall’art. 82 c.p. si celano in realtà numerose questioni problematiche che sono fonte di notevoli oscillazioni applicative. L’articolo si propone di fare luce sulle diverse ipotesi di aberratio ictus muovendo dall’idea che la funzione dell’art. 82 c.p. non sia tanto quella di incidere sulla nozione legale del dolo, come generalmente si ritiene, quanto piuttosto — come suggerito dalla stessa collocazione sistematica della norma — quella di regolare una particolare ipotesi di concorso formale tra un reato doloso in danno della vittima designata, e un reato colposo in danno della persona colpita per errore. I due reati, unificati dal legislatore soltanto ai fini della pena, conserverebbero per il resto la loro autonomia, con importanti conseguenze dal punto di vista applicativo.

The doctrine of transferred intent under the Italian criminal law (Article 82 of the Italian Criminal Code) is not really as simple as it looks. In fact, there are several questions when it comes to its enforcement. This paper investigates this issue and suggests that such rule goes beyond the mere mental element of the crime (mens rea), as it is generally believed. The doctrine of transferred intent involves a case where two offenses coexist in one criminal conduct: a willful offense attempted against the intended target and a negligent one actually performed against an accidental victim. The two offenses should be taken into account separately but should be considered as a single offense by the law merely in order to define the applicable punishment. This paper discusses the relevant practical consequences of such interpretation.

In 1996 Keane J, then an ordinary member of the Supreme Court, suggested that the complete removal of mens rea from criminal offences would be unconstitutional.  Ten years later the Supreme Court in CC v Ireland  struck down a statutory rape offence because of an absence of mens rea and the unavailability of a defence of mistake as to the victim’s age. This contribution to the Festschrift for Chief Justice Keane revisits the question of what constitutional principles are breached by the use of strict liability in criminal law. The suggested answer is that in an extreme case, such as Keane J envisaged in 1996, the legality principle may be breached but apart from that it is difficult to explain the unconstitutionality of strict liability per se in Irish law. The first part of this article critically analyses CC v Ireland, arguing that the judgment did not convincingly show incompatibility between the impugned strict liability offence and the Constitution. The second part of the article surveys potential constitutional bases for restraining strict liability; it considers the recommendation that the presumption of innocence should be thought of as restraining strict liability and emphasises the legality principle as an important check on criminalisation.
The question of the constitutionality of strict liability in criminal law and the question of the value of strict liability in criminal law may be related but are not the same. It may be that, on balance, strict liability ought not be used, especially for serious offences, but that does not mean there must be a constitutional doctrine to rule it out. This article is concerned with the question of the constitutionality of strict liability in Ireland. It generally neither favours nor disfavours the use of strict liability in criminal law; rather, it somewhat doubts that the Constitution puts, and should put, the use of strict liability off limits to the Oireachtas. The main reason for this is that judicial review of strict liability is problematic because there is an apparent absence of apt standards by which judges can decide what forms of strict liability are constitutionally permissible. Candidate constitutional doctrines for limiting strict liability are canvassed below and found to be problematic. That is not to say, however, that a doctrine to coherently limit strict liability per se could not be developed, but it is emphasised how such development would lead the courts deeper into the controversial territory of deciding the moral limits of the criminal law.

Il presente contributo affronta alcuni aspetti problematici legati alla re-sponsabilità da cose in custodia, disciplinata dall’art. 2051 cod. civ. Al-la luce dell’ampio contenzioso e degli incerti indirizzi giurisprudenziali, la responsabilità da cose in custodia costituisce uno dei principali pun-ti di emersione del “declino” della responsabilità oggettiva prevista da norme che delineano in maniera generica i presupposti applicativi e le prove liberatorie utilizzabili dai soggetti chiamati a rispondere. Attraver-so il confronto con altre esperienze giuridiche, in particolare quella francese in cui è in corso una riforma della disciplina della responsabi-lità civile, l’autore presenta alcune proposte per una modificazione o per una nuova interpretazione della normativa del codice civile.

In the summer of 1992, a leak developed in an underground water pipe belonging to the Stockport Borough Council. The pipe ran from the water main to a tower block where it supplied the water tanks in the basement of the block. The cause of the leak was never determined, but the effects of the leakage were far-reaching: when the leak was discovered, a large quantity of water had already fully saturated a nearby derelict railway embankment. 2 As a result, a considerable part of the embankment suddenly gave way in September 1992 and slid downwards, leaving a 27 meter long section of a gas main exposed and unsupported. Gas company Transco (formerly: British Gas), that was responsible for maintaining the gas pipeline, quickly reinstalled the support of the gas pipeline and repaired the embankment in order to mitigate the instant and serious risk of explosion. Transco sued the Council for the total repair cost of some £ 93,000.

In this paper, we argue that clients who purchase commercial sex from victims of forced prostitution should be strictly liable in torts towards the victims. Such an approach is both normatively defensible and doctrinally feasible. Fairness and equality demand that clients would compensate victims, even if one refuses to acknowledge that purchasing sex from a prostitute who might be a victim is a faulty behaviour. Clients profit from the activity of purchasing commercial sex, so fairness demands they will bear the costs they impose on victims who are unable to refuse the contact. Strict liability will bring about desirable distributive results along the lines of sex, class and race. Imposing strict liability will ensure consistency of the English law of trespass and it is supported by several instrumental considerations.

Such strict liability could be grounded in battery, despite the appearance of apparent consent by the victim to sell sexual services to the client. This is so for two main reasons. First, the extreme coercion operated on the victim renders her consent void so that an innocent third party cannot rely on the appearance of consent. Secondly, the client should be considered as having constructive notice with respect to the trafficker’s coercion. Our argument is supported by – but does not hinge upon accepting – the insight that the client’s behaviour is ultimately faulty.


Keywords: Torts, Strict Liability, Battery Trafficking, Prostitution

There is an ebb of consumer protection in Nigeria notwithstanding the existence of numerous laws and regulations governing the subject matter. Reported cases of fake and substandard products, adulteration, underweight, defects and the presence of foreign particles in products abound, with little or nothing being done about it.
The reasons are not farfetched. Not only is the Nigerian consumer generally unconcerned about enforcing his rights, the requirements for such enforcement appears to be rigorous and burdensome on him. To establish his case, an aggrieved consumer is required to prove an existing contractual relationship between him and the defendant or that the defendant has a duty of care which has been breached by the latter as a result of which he has suffered loss or injury. Cases abound to show that this burden of proof on the consumer places an onerous task on him. The plethora of statutes that purports to give protection to consumer appears to be limited to providing standards, creating provisions and inflicting criminal sanctions, totally ignoring the right of action of the consumers who suffer loss or injury to recover damages from the use of goods and other products. This has therefore created a need to look beyond the strict contract rules and the proof of negligence for a viable alternative to successfully enforce civil liability claims in product defect cases.
In this regard, this long essay seeks to examine the principle of strict liability as it applies to product liability cases, and to conduct an inquiry into the extent to which it may be relied on by the Nigerian consumer and applied by the courts in order to advance consumerism. This work will by comparative analysis and using a doctrinal research method, expound the application of strict liability rule within the sphere of consumer law in Nigeria, drawing insight from selected jurisdictions. Reliance will be placed on primary data sources including statutes, case laws while relying on journal articles, news prints and textbooks which will form the secondary data sources.

I will discuss the relationship between two different accounts of remedial duty ascriptions. According to one account, the beneficiary account, individuals who benefit innocently from injustices ought to bear remedial responsibilities towards the victims of these injustices. According to another account, the causal account, individuals who caused injustices (even innocently) ought to bear remedial duties towards the victim. In this paper, I examine the relation between the principles central to these accounts: the Beneficiary Pays Principle (henceforth, Beneficiary Principle) and the well-established principle of Strict Liability in law. I argue that both principles display a strong yet unexplored similarity as they make certain kinds of causal connection sufficient for incurring liability. Because of this similarity, I suggest that insights into the Beneficiary Principle can be gained from exploring its relation with Strict Liability. In particular, I examine two new positive arguments that could be adapted to support of the Beneficiary Principle: the Minimising Injustice Argument and the Normative Connection Argument. However, I'll show that only one of those arguments, namely the Normative Connection Argument, can truly support the Beneficiary Principle. So if you endorse the Normative Connection Argument for Strict Liability, you have at least a strong prima facie reason to endorse the parallel argument for the Beneficiary Principle.

In Law of Torts: “Where no duty is owed, there can be no liability.”

This statement is being discussed under following heads:
- What is Duty of Care?
- When is the duty of care breached?
- What could a person be entitled to if a duty of care is breached?
- EXCEPTIONS:­
1. Vicarious liability
2. Strict liability

ÖZET
Çalışmada, veteriner hekimin hukuki sorumluluğu bağlamında hayvan kavramı ve hayvanın hukuki niteliği bu konuda Türkiye’deki, diğer hukuk sistemlerindeki ve uluslararası düzenlemelerdeki esaslara yer verilerek ele alınmış; ardından da veteriner hekimlerin uyguladıkları tedavi sonucunda genel olarak karşılaşabilecekleri sorumluluk sebepleri değerlendirilmiştir. Veteriner hekimin genel olarak sorumluluk sebeplerinin incelenmesi sırasında öncelikle veteriner hekimin hangi hallerde sorumluluğunun sözleşmeden doğabileceği ve söz konusu sorumluluğun hangi sözleşme türünden veya türlerinden kaynaklanabileceği irdelenmiştir. Bunun ardından veteriner hekimin sözleşme dışı sorumluluğunun incelenmesi esnasında, veteriner hekimin haksız fiilden ve vekaletsiz iş görmeden doğan sorumluluğu; bunlara ilaveten hayvan bulunduranın sorumluluğu veya tehlike sorumluluğu çerçevesinde kusursuz sorumlu olduğu haller tartışılmıştır.
Anahtar Kelimeler: Veteriner hekimin sorumluluğu, veteriner hekimin haksız fiil sorumluluğu, veteriner hekimin vekaletsiz iş görmeden doğan sorumluluğu, veteriner hekimin kusursuz sorumluluğu.

ABSTRACT
In this study, the term of animal and its legal character is analyzed by mentioning the legislations in Turkey, other law systems and international regulations; then the general liability reasons that ground on therapies and treatments of veterinaries are reviewed. While analyzing general liability reasons of veterinaries, it is first explicated under which circumstances would a veterinary be liable according to a contract and from which type or types of contracts would this liability incur. After that, the liability of veterinary that arise from tort, acting without authority and veterinary’s strict liability that can arise from the animal owners’ liability or risk liability.
Keywords: Liability of veterinary, Haftung des Tierarztes, tort of veterinary, liability of veterinary that arise from acting without authority, strict liability of veterinary.

American and English criminal law is characterized by wider use of strict liability than one finds in the criminal law of many European jurisdictions. With respect to English law, scholars have suggested that the use of lay juries explains the prevalence of strict liability offenses. This paper investigates that idea in American law and finds some evidence for it. Courts and legislatures sometimes worry that mens rea is difficult to prove when the only available evidence is circumstantial—it must be inferred from conduct and circumstances. Just as the evidence rules reflect a concern with the limits of jurors’ abilities to handle certain kinds of evidence, the rules regarding strict liability as well as reverse burdens of proof (under which defendants must prove defenses) manifest a concern that juries are worse than judges at inferring culpability from available evidence. One way to address this deficiency is to eliminate the requirement for mens rea altogether.
But then what safeguards remain to ensure that only the culpable are criminally  punished? The answer in American law, broadly, is that adversarial criminal procedure is thought to compensate for this deficiency in substantive criminal law. Courts identify, somewhat obliquely, two procedural components in particular: the use of prosecutorial discretion, and, paradoxically, the jury. While courts are somewhat skeptical of the jury’s capacity to accurately recognize proof of culpability, they profess
faith in the lay jury’s “common sense” instincts—or political judgments—to prevent convictions of the non-culpable. On that view, strict liability addresses the jury’s weakness regarding a challenging issue of proof, while the jury’s purportedly strong capacity for normative judgment, in turn, provides a safeguard against unjustified punishment.

The development of driving support and cruise assist systems in the automotive industry has been astonishing, accelerating dramatically in the last ten years: since the first DARPA Urban Challenge field tests have multiplied in the US – in California alone, there are currently 39 companies testing self-driving cars – and the once remote prospect of “driverless” vehicles becoming commercially available (coming to market) (in the next future) might not be so far from reality. A broad range of scientific studies suggests the implementation of fully automated driving systems may come soon.

Highly Automated Vehicles (HAVs) are likely to profoundly transform our social habits, and to revolutionize our way of interacting with the surrounding environment; in addition, legal scholars have already outlined how automated vehicles create a multi-level challenge in terms of regulation, capable of impacting on different areas of the law.

One of the areas where research is much needed is tort liability: in addressing the regulation of accidents caused by automated cars, jurists must assess whether tort liability rules – as they are currently shaped – are suited to govern the “car minus driver” complexity, while simultaneously holding on to their theoretical basis. Whether the current framework proves itself to be inadequate and irreparably “out of tune” with the new circulation dynamics, the only alternative will be to amend or renew it.

In light of these considerations, our aim is to present a hypothetical system for liability arising from road accidents caused by driverless cars. This model should be interpreted as a theoretical guideline, which must be adapted and declined in accordance with the specific attributes entailed within each legal system. Consistently with this premise, the article is outlined as such: in Part I we set out (and argue in favour of) some assumptions on which analysis rests. The main postulates that we embrace are that: a) we will ultimately reach a degree of technology that is capable of entirely substituting the human driver on the road; b) a fully automated driving system will be able to manage the “behaviour” of the vehicle safer than its “organic” counterparty; and c) the most promising strategy in addressing the HAVs regulation is to focus primarily on investigating the risks involved in the circulation of “totally” automated cars – where the human driver has no role – rather than addressing already existent (or forthcoming) intermediate support technologies. In Part II, we present the main options available to lawmakers in allocating liability for road accidents caused by HAVs. Traditionally, four leading “players” have been traditionally considered – in the academic debate as well as in the regulatory proposals enacted by governmental and independent bodies – “potentially responsible” in case of road accidents involving HAVs: the driver of the car; its owner; the government (or, widely speaking, the general public) and the manufacturer of the vehicle: after analysing each potential figure, we conclude that the manufacturer is the most appropriate figure to be held liable in the case of road accident involving driverless cars. Part III of the article investigates, on the basis of the background established in Part II, the most widely preferred solutions proposed to regulate a hypothetical liability system for manufacturers: on one hand, we consider the role that rules on product liability can play, devoting our attention both to the EU and to the US regulation; on the other hand, we evaluate the impact of different strict liability options. In particular, as for the latter, we then proceed to a specific investigation of the hypothetical system proposed by Kenneth Abraham and Robert Rabin in their article “Automated Vehicles And Manufacturer Responsibility For Accidents: A New Legal Regime For A New Era” (2017).

In Part IV, after “laying down the ground” through the analysis of previous solutions for regulating tort liability in accidents caused by Highly Automated Vehicles, and after underlining how none of them seems entirely satisfactory, we present our proposal for allocating risks in the driverless car world. We will illustrate, in particular, how a “two-steps” system – operating through a negligence assessment and a reward fund – represents an optimal solution to mediate amongst the conflicting needs in the regulation of driverless vehicles.

In Part V, finally, we draw some Conclusions on the basis of the various aspects addressed in our analysis, and present some alternatives we considered (and excluded) in developing our system.

O chamado princípio da razoabilidade tem sido utilizado
como um dos mecanismos disponíveis ao administrador para afastar
eventual rigidez formal que trazem juntos os tradicionais princípios da
legalidade estrita e supremacia do interesse público. Trata-se de vertente
que posiciona o Direito Administrativo voltado à proteção dos direitos
fundamentais contra a ação irrazoável e arbitrária estatal. Cunhado a
partir da expressão devido processo legal substancial, basicamente,
coíbe situações em que a aplicação da lei gere efeitos desarrazoados ou
inaceitáveis socialmente. Nesses casos, prioriza-se muito mais a finalidade
da norma do que seu conteúdo semântico.

InDret presenta, por cuarto año consecutivo, una selección de diez sentencias del Tribunal Supremo sobre cuestiones centrales del derecho de daños. El lector también encontrará en este trabajo las selecciones de 2004, 2005 y 2006 publicadas en números anteriores.

ÖZET
Çalışmada, öncelikle iş kazası ve meslek hastalığı kavramları ve birbirinden ayrılan yönleri üzerinde durulmuş, ardından, iş kazası ve meslek hastalığından doğan zararlardan sorumlulukta sorumluluğun süjesinin kim olması gerektiği incelenmiştir. Sonrasında sorumluluğun hukuki niteliği tartışılmış ve işverenin tehlike sorumluluğu çerçevesinde sorumlu olabilmesi için gerekli şartlara yer verilmiştir. Bu esnada, Yargıtay’ın genel hükümle düzenlenmiş bir tehlike sorumluluğu maddesi olmaksızın “risk nazariyesi”, “hakkaniyet sorumluluğu” gibi kavramları içeren içtihatları ile yaratmış olduğu işverenin tehlike sorumluluğuna göre sorumlu tutulması imkanına ve bu konudaki kararlarına yer verilmiştir. Son olarak, ağır bir sorumluluk olması sebebiyle işverenin sorumluluktan kurtulma imkanının olup olmadığı değerlendirilmiş ve bu sorumluluk için uygulanacak zamanaşımına değinilmiştir. 
Anahtar Kelimeler: işverenin iş kazası ve meslek hastalığından sorumluluğu, işverenin tehlike sorumluluğu, iş kazası, meslek hastalığı, tehlike sorumluluğunun genel hükümle düzenlenmesi 

ABSTRACT
In this study, it is first analyzed the terms of “work accident” and “occupational disease” and their differences, then the subject of liability that arises from work accident and occupational disease is deliberated. After that, the legal character of the liability is discussed and the conditions that shall be constituted to hold employer responsible due to strict liability are taken in hand. Meanwhile, it is featured the decisions of Supreme Court of Appeals and how this court hold employer responsible for strict liability with the terms like “theory of risk” and “equitable liability” without a general norm of strict liability. Finally, the ability of employer to be absolved from liability and period of limitation are surveyed.
Keywords: the responsibility of employer arising from work accident and occupational disease, strict liability of employer, work accident, occupational disease

Many national legislative frameworks in Europe limit the scope of strict liability to the specific sources of danger listed by statute. This in itself causes disparate treatment of seemingly similar dangers, since legislatively mandated instances cover some inherently dangerous situations but not others. Hence, European scholars call for the introduction of a "general clause" in the area of strict liability. A balance is sought between two opposites: restricting the application of statutory sources of strict liability on the one hand, and allowing unrestricted judicial policymaking to shape strict liability by referring to a "general clause" on the other hand. This Article aims to determine an adequate balance, taking into account fundamental prerequisites such as legal certainty, foreseeability (and therefore insurability), and equal treatment of equal sources of danger. It also addresses the scope of application of such rules. Should they be limited to the pursuit of abnormally dangerous activities, as many drafts propose, or to the control of abnormally hazardous objects? This Article argues that an ideal solution would be based on a legal standard that takes "object" rather than "activity" as the central criterion.

Strict liability for ultra-hazardous activities is entirely different from strict products liability.  Since strict liability has been applied to so-called dangerous or ultra-hazardous activities, the application has been limited to instances where the defendant has, for his own purpose, created an abnormal risk of harm to those surrounding him, and therefore should pay for any resulting injury.  Section 520 of the Restatement (Second) of Torts explains how one weighs the risk of harm emanating from ultra-hazardous activities against the appropriateness to its surroundings.  This is not, however, how one determines the applicability of strict liability in the area of defective products under Section 402A of the Restatement (Second) of Torts.

Section 402A has well-established standards for the concept of defectiveness, particularly when the defect was discovered through examining mismanufactured, misdesigned, and mismarketed products.  The best standard to determine whether the product is mismanufactured is the reasonable expectations test.  The risk-benefit analysis test, on the other hand, has emerged as the prevailing standard for determining misdesigned and mismarked products.

Strict liability for ultra-hazardous activities is concerned with the appropriateness of the defendant’s activities to the locale, while strict products liability requires the defendant to introduce a defective product into the stream of commerce that is unreasonably dangerous to the user or consumer.  These are two lines of reasoning that are distinct, separate, and independent of each other, and should never meet.

Türk Borçlar Kanunu’nun 71. maddesinin son fıkrası, önemli ölçüde tehlike arzeden bir işletmenin faaliyetine hukuk düzenince izin verilmiş ise, bu tür faaliyetlerden zarar görenlerin denkleştirilme isteyebileceğini düzenlemiştir. Bu hükmün nasıl yorumlanması gerektiği konusunda doktrinde çeşitli görüşler ileri sürülmüştür. Kanaatimizce burada örtülü bir kanun boşluğunun bulunduğu kabul edilmeli ve bu boşluk tam tazminat ilkesi ile doldurulmalıdır.

Article 71/4 of Turkish Code of Obligations stipulates that damages arising from allowed risks are to be compensated with an appropriate requital. Many views have been expressed as regards to the correct interpretation of this clause. In our view, there exists an implied legal gap in Article 71 of Turkish Code of Obligations and this gap shall be filled in accordance with the principle of full compensation.

Die Vorhersehbarkeitsklausel nach dem Modell des Art. 74 des Wiener Kaufrechtsabkommens (CISG) ist eine der wichtigsten vorgesehenen Änderungen der neuen ungarischen Privatrechtskodifikation im Bereich des Schadensersatzrechts.
Es wird von dem Reformvorhaben zu Recht erwartet, dass die gründlich und gewissenhaft ausgesuchten Lösungen mehr Probleme lösen als mit sich bringen. Man hofft ferner, dass die neuen Vorschriften den Grundsätzen der Gerechtigkeit, der Effektivität und nicht zuletzt der Rechtssicherheit gerecht werden und keine größeren Verwirrungen anstiften.
Man muss das Gleichgewicht finden, dass man den notwendigen Ermessensspielraum der Rechtsprechung nicht all zu viel einengt und somit die Flexibilität und die Anpassungsfähigkeit des Schadensrechts auf dem Altar der Berechenbarkeit nicht opfert. Jedenfalls muss man etwas Besseres schaffen als das geltende Recht.
Es wird zu prüfen sein, ob die Vorhersehbarkeit diesen berechtigten Erwartungen entgegenkommen kann. Wenn die Antwort verneinend ist, ist auf die Reform zu verzichten. Jedenfalls pflegt man in der Legislative große Hoffnungen hinsichtlich der Vorhersehbarkeitsklausel.
Der Begriff „Allheilmittel“ kann sowohl mit als auch ohne einen leicht ironischen Beigeschmack verstanden werden. Ist die Einführung der Vorhersehbarkeit wirklich der Balsam für etliche Wunden des Schadensrechts oder lediglich ein Placebo, und die Probleme werden nur reproduziert?

Vicarious liability is the doctrine by means of which liability for wrongful conduct may be imposed on a party that is not itself at fault; the party held liable is most commonly an employer and the immediate wrongdoer an employee. Considering the frequency with which it arises in practice, vicarious liability is a highly significant element of tort law in both common law and civilian jurisdictions. Yet, despite a long history of judicial and academic treatments, the underlying rationale for this doctrine, especially its operation as a species of strict liability in a system otherwise based on negligence, remains unsettled and controversial. The author outlines the core characteristics of the doctrine, briefly surveys its previously proffered rationales and undertakes a critical analysis of the rationale currently predominant in Canada, namely the “enterprise risk” theory as developed in the Supreme Court of Canada cases Bazley v. Curry and Jacobi v. Griffiths. The author’s position is that the enterprise risk theory of vicarious liability, in its current formulation, is inadequate to justify its application on a strict basis in all cases. Contrary to the orthodox position that vicarious liability is necessarily imposed irrespective of fault, that it just is a species of strict liability, the author maintains, first, that vicarious liability ought not be automatically identified with strict liability, that vicarious liability per se is conceptually distinct from strict vicarious liability, and that a due (or utmost) diligence defence is compatible with a robust vicarious liability rule. The author then argues that the enterprise risk theory, considered on its own terms, fails to justify the imposition of strict vicarious liability on a defendant who has taken utmost care to prevent wrongful employee conduct and whose enterprise as a whole does not pose an unusual or excessive risk. The policy considerations underlying the enterprise risk theory simply do not apply in the case of such an “exemplary” defendant. Thus, while Canadian law as it stands does not formally recognize a defence of due (or utmost) care in the context of employer vicarious liability, the currently predominant rationale for strict vicarious liability leaves room for the development of such a defence. The author concludes by proposing that the imposition of strict vicarious liability is best rationalized in terms of the more traditional strict liability rule derived from the classic case of Rylands v. Fletcher. The author maintains that the rule in Rylands is compatible with the enterprise risk theory, but that its utilization in vicarious liability cases would have the advantage of setting the proper scope and limits of the enterprise risk approach.

NOTE: This paper was awarded a JSD Tory Fellowship.

ABSTRAC: This article examines three linked questions which are considered key elements for the confi guration of a products liability system. First, defect categories, i.e., manufacturing defects, design defects, and insuffi cient warnings. Second, how to determine whether the design of a product is defective. Two possibilities become available at this point: consumer expectations test or risk-utility analysis. And, fi nally, whether to apply negligence or strict liability in cases of damages caused by defective products.

The limitation of liability (known as financial caps) of the ship owner has a long tradition in maritime law in general and in the marine oil pollution compensation regime in particular. This paper uses the economic instrument to critically analyze such a mechanism, in order to answer the question if the financial caps are indeed a historical mistake. r

Este trabajo propone un análisis crítico de los pronunciamientos de la STC 181/2000, de 20 de junio, sobre el sistema para la valoración de los daños y perjuicios causados a las personas en accidentes de circulación, y de los criterios que se deducen del fallo. La conclusión de este análisis es que es imprescindible reconstruir el razonamiento explícito de la sentencia y dar con una explicación más plausible del resultado final. En particular, del juicio que la sentencia realiza sobre el tratamiento legal de la culpa "relevante" del agente causante del daño y el papel capital que este razonamiento juega en la declaración de inconstitucionalidad. Con este fin, se parte de los conceptos básicos de la teoría de la responsabilidad objetiva, y en especial del papel que en ese contexto se atribuye tanto a la “culpa” de la víctima, como a la del agente causante. Este último aspecto se desarrolla a partir de la noción de culpa “adicional” (faute aditionnelle, zusätzliches Verschulden), reconocida y aplicada especialmente por la doctrina y por la jurisprudencia helvética.

The paper has dual aim: to analyse the structure of negligence, and to use it to offer an explanation of responsibility (for actions, omissions, consequences) in terms of the relations which must exist between the action (omission, etc.) and the agents powers of rational agency if the agent is responsible for the action. The discussion involves reflections on the relations between the law and the morality of negligence, the difference between negligence and strict liability, the role of excuses and the grounds of duties to pay damages.

In this paper I argue that Coleman’s mixed conception of corrective justice is subject to three important objections. First, it does not offer an explanation of the normative structure of tort law. The values of responsibility and concern for human well-being, on which Coleman grounds the practice of tort law, are not enough to justify its bilateral structure. Moreover, I suggest that the mixed conception does not offer a sufficiently deep analysis of the practice that might have explanatory power. Second, the mixed conception cannot account for all cases of strict liability. Coleman’s argument reconstructs strict liability for risky activities as part of the fault principle. This goes against conventional wisdom, according to which strict liability regulates lawful activities, and fault liability is always imposed for wrongful actions. Finally, Coleman neglects the distributive aspect of tort law. As a result, he misses the importance of liability rules in creating the scheme of primary rights and duties that regulates private interactions. On the other hand, I offer a new account of tort law that is immune to these objections and at the same time is able to accommodate the significance of human wellbeing and individual responsibility.

for useful comments on earlier drafts. Michael Faure is grateful to the Centre of Civil Law Studies at Louisiana State University (Baton Rouge) for providing research assistance for this paper. In addition, we benefited from information provided to us by John Hoffman (ANI) and Omer F. Brown (Harmon, Wilmot, Brown & Bagwell, L.L.P) for which we are equally grateful. We are indebted to Wanchi Tang (Maastricht) and Sally Brown Richardson (LSU) for highly useful research-assistance. The views reflected in this paper only reflect the personal views of the authors and is written under their sole responsibility. 1 For an overview of all principles of nuclear liability law, see infra Part I.B.

Liability and compensation for personal injury and death resulting from road traffic accidents is one of the great issues on the liability and compensation agenda of our time. Applicable liability regulations of Turkish Law in road traffic accident cases are of importance because once a road traffic accident occurs in Turkey; Turkish law applies to the dispute. It is also significant to mention about the Turkish compensation system based on the distinction of personal injury compensation and compensation in the event of death as a result of a road traffic accident. In light of this distinction, we examine basic issues in codified legal system as well as the policy approaches behind in order to focus on how someone can get damages.