Fault based liability

In most European countries the existing civil liability laws are based on fault or on the negligence concepts (in common law systems). However, in some countries new laws with a strict liability regime as a basis for liability have been enacted. In others, the case law theoretically based on the fault concept has led in some cases to a similar result. The duty of care that is to be considered under fault-based liability is interpreted in such a stringent manner that the difference between these regimes has shrunk. 

Despite the theoretically remaikable development from the fault-based liability towards the system of strict liability (ie, non-fault based), the result at the end might not be that different since the case law already has evolved in the same direction and therefore a fault-based system when interpreted as said could lead to a similar conclusion. However, there are some essential requirements for any legislation on civil liability that need to be maintained, especially the establishment of causation. It is of utmost importance that the causal link between the incident and the damage suffered, is to be shown by the plaintiff. Likewise, in the context of damage caused by an industrial activity, causation is to be proved to exist between the operator in charge of the activity and the incident that led to the damage. 

In connection with fault-based liability pursuant to All 823 para. 1 of the German Civil Code, the burden of proof for the cause of damage has been reversed in German jurisdiction if the damage was caused by the operation of an industrial installation. 

Critics have long complained about the ineffectiveness of medical liability law both as a means of reducing the risks of injuries and as a system of compensation for injuries. So far, none of these critiques has led policy makers to jettison our fault-based medical liability system and to replace it with some type of no-fault system as proposed by some scholars. Thus some form of medical liability is going to be a feature of the social and regulatory... 

In the law of tort, including negligence, liability is fault based. It must be proved that the defendant was at fault in that he/she acted wrongfully and as a result violated a right of the plaintiff, causing harm to him/her. The requirement of fault differentiates a genuine accident from a negligent act for which the injured person can be compensated. 

Manufacturers of products placed into commerce (including pharmaceutical manufacturers) are liable for harms caused by their defective products without the need for the plaintiff to prove that the manufacturer was negligent or at fault. This approach, known as strict liability, is one of the main approaches used in product liability cases. Strict liability is based on the three-part rationale that manufacturers are in a better position to spread... 

Although claimants may still choose to pursue compensation, this statute essentially constitutes Federal tort reform for eligible childhood vaccine-related injuries. By establishing a no-fault compensation scheme as the first form of redress for injuries and limiting liability for manufacturers who have met FDA requirements, Congress has, in essence, nullified case law that had previously allowed liability findings based on theories of... 

The EC Directive on liability for defective products [4] was adopted in 1985. According to the directive the producer is to be held liable for damage caused by a defect in his product. It is based on a strict liability regime, ie, one does not have to prove negligence or fault to be able to get compensation. What the injured party has to prove, is the existence of the danuge, the defect of a product and the causal relationship between the damage and the defect (Art. 4). 

While users of desktop and web-based software are accustomed to software bugs, users of complex embedded systems are by far less tolerant of malfxmction. Consequently, embedded systems often have to meet high quality standards. For embedded systems that are safety-critical, society expects software that is free of faults that can lead to (physical) harm (e.g., consumer reaction to cases of xmintended acceleration of Toyota cars (Cusumano, 2011)). In fact, manufacturers of safety-critical devices have to deal with safety standards and consumer protection laws (Akerholm et al., 2009). In case of (physical) injuries caused by omissions or negligence, the manufacturer may be foxmd liable to monetarily compensate for an injury (Kaner, 1997). The Economist claims that "product-liability settlements have cost the motor industry billions" (The Economist, 2008), and Ackermann et al. (2010) say that for automotive companies and their suppliers such as Bosch "safety, warranty, recall and liability concerns. .. require that software be of high quality and dependability."... 

At about the same time, reforms were introduced to provide for compensation of injured workers in other industries. This system, known as Workers Compensation y had similar goals to the FELA but used a fundamentally different approach. It started as a scheme for federal employees in 1908, and expanded rapidly between 1911 and 1921 when it was adopted by all but six states as the primary method of compensating injured employees in both the private and government sectors. Workers compensation is based on the legal principle of strict liability. Employers have to compensate injured employees regardless of who was at fault. Therefore, unlike FELA, courts do not have to decide on the comparative negligence of employer and employee. In effect, workers compensation operates as social insurance scheme. To provide for settlements, employers can either self insure or pay premiums to private or state-run insurance companies. 

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