By Ken Oliphant
Even if the damage for which repayment is sought in an motion in tort is thought of as a unmarried indivisible loss or a plurality of losses could have a couple of vital ramifications for the legislations of tort, for instance, in contemplating compensable harm, the apportionment of accountability among a number of tortfeasors, and the appliance of issue classes and (where they exist) caps and thresholds. those matters could have specific value within the context of mass torts, and lift questions of non-public foreign legislations and civil strategy in addition to major tort legislations. also they are of substantial functional value for insurers. during this comparative examine, state studies from twelve felony structures and specific studies on inner most overseas legislation and coverage offer an perception into the interplay of tort legislation, civil approach, and coverage during this hitherto mostly overlooked sector of felony technology.
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Additional info for Aggregation and Divisibility of Damage (Tort and Insurance Law)
51) § 1302 no. 1 and with respect to German law G. Wagner in: Münchener Kommentar, BGB (4th ed. 2004) § 830 no. 19. Rummel-Reischauer (fn. 51) § 1301 no. 1. Ernst Karner/Olaf Riss 34 F. Divisibility of Damage and Causal Indeterminacy 19. To deal with problems relating to the proof of causation – especially in mass tort scenarios – some jurisdictions have developed exceptional rules which allow for the imposition of liability on the basis of the defendant’s creation of a risk, whether or not it can be shown that the defendant’s conduct was a “but for” cause (sine qua non) of the victim’s injury.
The same applies if the damage resulted from a criminal offence which may be punished with a prison sentence of more than one year. 25 23 If the three-year limitation period applies, it shall commence when the claimant is aware of the loss and knows who the wrongdoer is, so that he can file a claim with some prospect of success. It is subject to debate when exactly the claimant is deemed to be aware of his loss. Some argue that he cannot be aware of a loss before the loss actually occurred; therefore prescription will not commence without the loss being sustained by the claimant.
The decision on whether to pursue restitution in kind or damages is, however, a question of the joint will and must thus be taken on the basis of § 833 ff. ABGB. 15. CASE STUDY (ownership and right of use) P1 owns wooded land over which P2 has acquired the prescriptive right to collect timber. D negligently causes a fire which destroys the wood. Is the harm suffered by P1 and P2 regarded as a single indivisible loss or as two independent losses, and what are the consequences of the chosen classification?