On 29th and 30th March 2021, the British Association of Comparative Law organised two webinars entitled respectively Comparative Torts: Liability for Emerging Technologies and Comparative Torts: Liability for Ecological Harm.
The 2019 fifth edition of Markesinis’ magisterial German Law of Torts (1986), by John Bell and André Janssen, is an ideal and indispensable source of reflection on comparative torts and tort law reform. It formed the starting and focus point of our comparative law discussions. With one broad and searching question in mind, whether the German law of torts is fit for the 21st century, experts in German, French and English tort law jointly discussed tortious liability in relation to emerging technologies (webinar 1) and in relation to ecological harm (webinar 2). Insights into the English, French and German law of torts on those topics brought different perspectives together and highlight techniques and factors of legal development; a lively online discussion and Q&A followed with the attendance.
The first discussion on Liability for Emerging Technologies was presented by Dr Sophie Turenne (Cambridge, BACL Chair), and chaired by Professor André Jansen (Radboud Nijmegem).
Discussants: Professor Ulrich Magnus (Hamburg); Professor Gerhard Wagner (Berlin); Professor Jonas Knetsch (Saint Etienne); Professor Jean-Sébastien Borghetti (Paris 2); Dr Colm McGrath (King’s College London).
Participants discussed how new digital technologies shape and change the landscape of tort law (or delict). They focused on liability for self-driving vehicles, as a most prominent example of emerging technologies raising difficult issues today. Professor Wagner first reminded us of the strict liability regime of German traffic law, with a mandatory insurance system in the background: liability for road accidents is thus governed by a well-oiled machinery with enormous costs spread across those who drive motor vehicles. A distinction was made between half-automatic vehicles, with interactions between the software programme and the driver’s behaviour on the spot, and fully autonomous vehicles, the latter being a rarity at the moment. While the road traffic liability regime was extended in 2017 to self-driving vehicles with a driver supervising the operation of the car, fully autonomous vehicles were likely to require a shift from the operator’s liability (with a substantial role for insurers of motor vehicles) towards the manufacturer’s liability, as operators, owners or drivers become in fact passengers. This is not without problems, as the current debates to reform the Products Liability Directive illustrate.
Professor Magnus then concurred, noting the driver’s requirement to be fully perceptive of the traffic situation in the automated car under the current legislation. The 2017 legislation has also doubled the amount of damage recoverable for bodily harm and property damage. This illustrated a typical attitude of the German legislator, cautiously adapting the existing special liability regime to an emerging technique whose dangers are still uncertain. In typical German fashion, the 2017 statute on road traffic liability by motor vehicles could not be extended to drones by analogy.
Turning to French law, Professor Knetsch contrasted the German 2017 reform with the French regulations. Unlike Germany, the current (2020) draft legislation on the use of self-driving vehicles does not contain provisions on civil liability. The 1985 Loi Badinter is expected to provide for the compensation of victims of traffic accidents in which a self-driving car is involved. As is well known, the Loi Badinter provides a ‘super-strict liability regime’, backed up with an insurance-based compensation procedure. The claim settlement practice shows that the driver’s or keeper’s liability for traffic accident is largely replaced by a compensation scheme operated by insurance companies or a compensation fund. Unlike Germany, there is unlimited insurance coverage of personal injury cases and, from a French perspective, the increase of the liability caps under German Road Traffic Act is intriguing, particularly as it is anticipated that self-driving vehicles could significantly decrease fatalities. Whether self-driving vehicles are considered as a threat to the financial viability of the current liability insurance regime or as a potential source of massive personal injury claims reflects the ambiguity towards emerging technologies: a mixture of faith and diffuse fear.
Professor Borghetti reminded us of the persistent distrust of the Products Liability Directive since French law had long developed strict liability for defective products, with a products liability regime more favourable to plaintiffs than the Products Liability Directive. For this reason, there is little interest among French lawyers in the reform of the Product Liability Directive to cover emerging technologies. Instead, French lawyers consider other liability regimes, such as strict liability for things, which would provide for a type of operator’s liability, as opposed to a manufacturer’s liability. Contrary to the German trend, then, emerging technologies seem to be inducing a movement back to operator’s liability in French law. In the long run, however, a one-size-fits-all solution or regime is unlikely to be suitable for emerging technologies. Accidents caused by autonomous vehicles, drones, medical robots, etc. are likely to require different regimes, and the example of autonomous vehicles shows that specific regimes may continue to apply to some emerging technologies. As in Germany, French law will have to come to terms with the application of the Products Liability Directive to emerging technologies.
Dr McGrath considered the use of self-driving vehicles and self-learning systems in health care, highlighting a different set of values in relation to medical malpractice, with trust and transparency at the forefront. Liability for self-driving vehicles is moving largely in the same direction as in Germany. Unlike Germany, though, the UK has a baseline of fault liability for road traffic accidents, with a strong focus on driver’s personal conduct. The Automated and Electric Vehicles Act 2018, not yet into force, relies however on a motor insurance solution as the primary route to compensation, instead of a products-liability-based approach. The English approach is victim-focused, with an emphasis on insurance, relegating but not fully excluding the relevance of a UK products liability analysis. The features of the Act reflect a shift towards novel forms of trigger for strict liability in UK law, deeming insurers to be liable in the circumstances. The Law Commission is currently also consulting on how to regulate automated and electric vehicles generally, with extensive discussion of the definition of safety and mapping through, from pre-deployment to in-market follow up.
By contrast, the setting for AI in healthcare is very different, with self-learning systems increasingly common in various health-care contexts. In this context, fault remains the crux of medical liability in both Germany and the UK. Focusing on self-learning systems as support rather than substitutes for medical decision making should maintain a role for existing liability models (subject to recognising loss of a chance in diagnostics). In this respect, Dr McGrath highlighted the contrast between medical disclosure duties in the UK and Germany, with a German model better placed to support patients’ choice to have self-learning systems involved in their care. If German disclosure rules are better placed to facilitate patients, this is because the technology does not fundamentally disrupt existing medical choices about what matters.
Participants then engaged in a lively discussion about the points above and considered further issues, such as the key question of recourse actions of motor vehicle insurers against manufacturers: since autonomous vehicles are developed to minimize accidents related to the drivers’ behaviour, liability shifts from the user to the manufacturer. Participants considered questions of liability in relation to future leasing arrangements, where intermediate companies would rent self-driving vehicles and take care of the product servicing: there were questions of protection against liability from third parties, and against harm from any accident that the passenger suffers in the car itself, and ultimately questions on how far liability for selling a product would turn into liability for providing a service. They also discussed the application of the rules on causation to emerging technologies, how contractual liability would also need to adapt, particularly in light of the rule of non cumul in French law, and how easier it was still for claimants turn against the operator rather than against the manufacturer for a defective product. We encourage you to watch the videos for further details.
The recording of this discussion is available here:
The second discussion on Liability for Ecological Harm was presented by Dr Sophie Turenne (Cambridge, BACL chair), and chaired by Professor John Bell (Cambridge).
Discussants: Professor Simon Taylor (Nanterre); Professor Jonas Knetsch (Saint Etienne); Professor David Howarth (Cambridge).
Professor Simon Taylor kicked off the discussion by explaining the recent changes that France brought to its civil code (article 1246 and following) following the Erika spilling (decision in French, comment in English): France recognized ecological harm as a distinct category of loss. This new provision covers damage to nature itself, independent of any harm to individual interests. This means that some significant adjustments to the definition of harm will be needed, as well as changes regarding who has legal standing and the appropriate remedies. Challenges in implementing this reform have started to emerge. Interestingly, one of the major innovations pertains to remedies: repair to the environment is the primary remedy, and damages are available only as a secondary remedy, where it is impossible for the responsible party to repair the harm to environment.
Less than 10 claims, however, were brought before the courts between 2016 and 2019. One problem is that the legislation does not detail the heads of damage, which makes it difficult for parties to formulate claims and for judges to assess them. Environmental NGOs are also reluctant to take the lead in these cases as their preparation is complex and establishing causation raises particularly difficult points. For instance, in a 2020 first-instance judgment, the Tribunal correctionnel de Marseille chose to evaluate the ecological harm by relying on concepts from ecological science (the worth of animals was evaluated thanks to its biomass, which does not say much about the specific distinctive role than an animal may play in its environment). Overall, this new provision is mostly important for its considerable symbolic impact on liability for environmental harm – it could have been inserted in the Environmental Code but its insertion in the revered Civil Code is a way to influence hearts and minds in the fight to protect the environment.
German and English laws of tort or delict have not so far taken this route. Indeed, in the first webinar, Professor Jonas Knetsch had already persuasively contrasted the position of French and German laws of tort or delict in relation to liability for harm caused by self-driving cars: the German lead the way while the French are more cautious. In the case of ecological harm, the situation is the reverse. There is no specific provision for ecological harm in the BGB. The German civil code (§ 823 I) limits liability to enumerated interests, including to the recovery for injury to life, body, health, freedom, property, or ‘other rights’ of a person, which courts interpret strictly (environmental assets are not ‘other rights’). There is no reference to harm inflicted to the nature or to the environment itself, so there is no basis for the compensation of pure environmental harm. The BGB only allows claims for compensation of environmental harm when one of the rights or interests listed under § 823 I has been violated, for example, in the case of pollution of private farm land or in the case of diseases suffered by cattle or by people. But even in these cases, claimants must overcome major legal obstacles, namely the proof of fault, wrongfulness and, what is even more complicated in some cases, the causal link between the defendants’ action and the damage to one of the BGB’s legally protected interests.
It is also well known that German law is not fond of strict liability. Only in 1990 did the German Parliament enact environmental liability without fault to a limited extent, on the operators of potentially hazardous facilities for the death, personal injury or property damage caused through emissions from such facilities. The concept of pure ecological harm was in fact introduced in German law with the transposition, in the 2007 Environmental Damage Act, of the European Directive on environmental liability. The Directive is however limited to ecological loss, i.e. harm to natural resources; it expressly excludes private losses from compensation. This exclusion also explains why the Environmental Damage Act has not so far been recognised as a protective norm (Schutzgesetz) under § 823 II, which would yet provide an alternative basis for liability for environmental damage. It is a matter of debate whether this Act should be regarded as a protective norm under § 823 II.
An additional problem is the way in which lawyers think about pure ecological damage. While a French lawyer may have in mind the Erika case, a German lawyer may think in broader terms. Indeed, there is a case pending in Germany where a South American claims damages from a private multinational corporation were sued for environment at home.
When it comes to English law, Professor David Howarth painted similarly a bleak picture. Indeed, it is difficult to sue in torts against public authorities generally and there is no expectation that NGOs could be successful. The law of a nuisance protects interests in the land and this may thus bring some solution in pollution cases. However, it would not do so for harm to biodiversity or climate change. New developments in this area by courts seem unlikely. However, it is possible that some changes would be initiated by legislation as an environmental bill is tabled in Parliament.
The lively debates covered a wide range of points. Some were presented as being deliberately provoking, such as whether ecological damages should really be dealt with by tort law or be better left to environmental law. Other questions were more technical in nature such the adoption of a possible statutory in English law to provide for ecological damages, ways to calculate ecological damages, environmental damage assessment, judicial expertise to assess damages and criminal-civil law interactions (as current reforms are pending in the French Parliament, which aim to strengthen environmental protection with criminal law and the consequences of the possible adoption of a new offence of ecocide on civil liability). Another question on the possible harmonisation of tort law and ecological harm across domestic systems thanks to European instruments triggered much debate between the panellists.
The recording of this discussion is available here:
Account posted by Dr Sophie Turenne (Cambridge) and Dr Yseult Marique (Essex)
 Article 1246. “Every person liable for ecological harm is obliged to repair it”.
Article 1247. “Any ecological damage consisting in a significant attack on the elements or functions of ecoystems, or to collective benefits that human being derive from the environment, may be repaired as provided in the present title”.