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(Failure to ensure the wearing of a ski helmet) : D, a ski instructor, negligently fails to make sure that all skiers in her‘off -piste‘group wear helmets. P, a skier in the group, hits a tree. P immediately suff ers head injury X, and years later another head injury Y that developed from the same accident.
An. and Comp. Report ……….. 26 Germany ……………… 349 Poland …………… 529
Austria ……………………………… 147 Greece …………………. 386 South Africa ….. 559
France ………………………………. 316 Norway ………………… 488 United States …. 662
Case 2
(Three mistakes during one treatment) : Physician D treats patient P negligently and performs three mistakes on the day of the treatment: A, B and C. Mistake A causes harm X after a year. Mistake B causes harm Y after two years. Mistakes A and C together cause harm Z after three years.
An. and Comp. Report ……….. 29 Germany ……………… 349 Poland …………… 529
Austria ……………………………… 149 Greece …………………. 387 South Africa ….. 559
France ………………………………. 317 Norway ………………… 489 United States …. 664
Case 3
(Consecutive harms from one injury) : Builder D lays down defective foundations for a building thereby creating the risk of future collapse. As a result, the value to the owner of the building (P) decreases (harm A). Two years later the foundation subsides and requires fixing paid by P (harm B). Three years later cracks appear in the building fixed by P (harm C). Four years later the building collapses (harm D).
An. and Comp. Report ……….. 30 Germany ……………… 350 Poland …………… 529
Austria ……………………………… 150 Greece …………………. 387 South Africa ….. 560
The law of prescription regarding tort claims in Norwegian law is regulated in the general act on prescription of claims. The origin of the provision is the former act on prescription of claims of 1896. The subject of prescription has not generated much discussion over the years. The major literature on the field is primarily one comment to the statutory law and a doctoral thesis on the starting point of the prescription period, apart from a few other contributions. A few minor doctrinal works analyse the special problems of prescription regarding tort claims.
DEFINITION OF PRESCRIPTION
The definition of prescription under Norwegian tort law is very much in accordance with the definition‘a legal institution that prevents P from enforcing an alleged right against D because of the running of a specified period of time on the tort claim‘.
The claim is a right to damages for harm caused that comes into being once the defendant has committed the tortious act. This is the general starting point, but there are some modifications, see infra 27– 30.
THE NATURE OF PRESCRIPTION AND ITS EFFECTS
The Norwegian concept of prescription only affects the claimant's right to compensation when not suing within the time period. Hence, the material obligation for the defendant exists after the prescription period in the sense that a debtor who mistakenly has paid a claim after the prescription period has expired, cannot claim restitution based on unjust enrichment. The effect of barring the claim is considered to be material, having effect both within and outside courts. It is not merely a procedural defence for the defendant. In fact, one may on principle file a claim after the prescription period has expired, because the civil litigation rules accept the plaintiff's pretention of having a valid claim. In the doctrinal literature the prescription claim is in general perceived as a material, not a procedural matter.
Prescription is a major legal defence that bars civil actions on the claim after the expiry of a certain period of time. Despite its far-reaching practical effects on litigation and on society at large, and the fact that it is the subject matter of pervasive legal reforms in many countries, the law of prescription (limitation of actions) is rarely discussed, analysed and compared. To meet this challenge, this book canvases in-depth the law of 15 selected jurisdictions (covering Europe, South Africa and the US jurisdictions) and extensively analyses in comparative perspective the elements of prescription (accrual of the cause of action, prescription periods, rules of suspension, renewal, extension, etc), their interrelations, and the policy considerations (including economic analysis). Topics also covered include the notions of 'action', 'claim', and 'cause of action', subjective and objective prescription, statute interpretation and judicial discretion. The book concludes with how the present law can be improved and where suitable harmonised. While its main focus is the prescription of tort claims, the analysis, comparison and conclusions are highly relevant to most civil actions. Prescription in Tort Law is the result of a three-year research project lead by the European Group on Tort Law (EGTL) that brings together leading academics of the field. It is an invaluable resource for private lawyers. With contributions by Bjarte Askeland (Bergen Appeal Court Judge, Norway), Ewa Baginska (University of Gdansk, Poland), Jean-Sébastien Borghetti (University Paris II Panthéon-Assas, France), Giovanni Comandé (Sant'Anna School of Advanced Studies, Italy), Eugenia Dacoronia (University of Athens, Greece), Isabelle Durant (Université catholique de Louvain, Belgium), Israel Gilead (Hebrew University, Israel), Michael D Green (Wake Forest University, United States), Ernst Karner (University of Vienna, Austria), Anne LM Keirse (Utrecht University, The Netherlands), Bernhard A Koch (University of Innsbruck, Austria), Frédéric Krauskopf (University of Bern, Switzerland), Ulrich Magnus (University of Hamburg, Germany), Miquel Martín-Casals (University of Girona, Spain), Johann Neethling (University of the Free State, South Africa), Elena Occhipinti (University of Pisa, Italy), Ken Oliphant (University of Bristol, United Kingdom), Albert Ruda (University of Girona, Spain), Stefan Rutten (University of Antwerp), Luboš Tichý (Charles University, Czech Republic) and Bénédict Winiger (University of Geneva, Switzerland). ISRAEL GILEAD is Bora Laskin (Emeritus) Professor of Law at the Hebrew University of Jerusalem, where he was Dean of the Faculty of Law between 1999 and 2002. Since 2016, he has been a Professor and Head of the Advanced Legal Studies program at The Academic Center for Law and Sciences, as well as Head of the committee in charge of social sciences, law and business administration at the Israeli Council of Higher Education. Israel is a Member of the European Group on Tort Law and of the American Law Institute and is the author of numerous publications on tort law, law and economics, prescription and corporate law. BJARTE ASKELAND is an Appeal Court Judge in Gulating lagmannsrett, Bergen, Norway and a Professor of Law at the University of Bergen. He is a Member of European Group of Tort Law and author of numerous monographs and articles on tort law.
In the course of the analytical and comparative discussions following this Questionnaire some changes were made in the cases, in the order of the topics discussed and in the suggestions made. Therefore there are some differences in this regards between the Questionnaire and the final reports.
INTRODUCTION
The aim of the project is to explore how (and why) the passage of time on an alleged tort law claim affects (and should affect) the claim, the parties (P the plaintiff and D the defendant) and other parties through the defence of prescription (limitation of actions).
DEFINITION OF PRESCRIPTION
Prescription in tort law is a legal institution that prevents P from enforcing an alleged right against D because of the running of a specified period of time on the tort claim. In the context of tort law the subject of prescription is usually the right to tort remedy, mainly the right to damages for harm caused. This right to remedy is a right that comes into being once a right imposed by tort law, such as the right to bodily and property integrity, and the right to reputation, is breached (some jurisdictions distinguish in this regard between a primary right and a secondary right to remedy). For the purpose of this project, claims for professional malpractice are also considered as tort claims, although in some jurisdictions they are treated as contractual claims, as long as they are based on grounds of tortious conduct (eg breach of a standard of care).
Question– Does this definition suit your jurisdiction ? Other definitions?
THE NATURE OF PRESCRIPTION AND ITS EFFECTS
There are different ways by which prescription prevents P from enforcing an alleged right of remedy against D. Its effect may be: (a) to extinguish P's right to remedy; (b) to provide D with a substantive defence that prevents P from enforcing the right to remedy although it is not extinguished; (c) to provide D with a procedural defence that bars P's ability to litigate the right in courts.
This project of the European Group on Tort Law (EGTL) aims to explore how the passage of time on a tort law claim can affect, actually affects and should affect, through the defence of prescription (limitation of actions), the claim, the parties (plaintiff P and defendant D) and other parties. For the purpose of this project, claims for professional malpractice, although considered as contractual claims in some jurisdictions, are treated as tort claims to the extent that they are based on grounds of tortious conduct (such as breach of a standard of care).
Notably, this report focuses on the general law of prescription of tort liability. Special rules of prescription that apply to specific contexts, such as prescription in cases of sexual abuse, prescription under European Council Directives and their national implementations, or of tort claims for harms caused by atomic installations, are discussed, when relevant, only in the national reports and the European Union report. It is also emphasised that this project does not discuss legal arrangements under which rights (such as legal powers) exist from the outset for a limited period of time after which they expire‘from the inside‘rather than by the operation of prescription law. Neither does it discuss acquisitive prescription as a way to acquire property rights in immovable and movables.
The discussion of each of the following topics starts with a theoretical analysis, based on the first round of EGTL discussions, and then proceeds to a comparative report and its conclusions, based on the second round of EGTL discussions. It should be emphasised, though, that the analysis, the observations and the suggestions made in this report, as well as the final conclusions (Section XIII) reflect the views of the authors and not of the EGTL.
DEFINITION OF PRESCRIPTION
Prescription in tort law is a legal institution that prevents the plaintiff (P) from enforcing a tort claim against the defendant (D) because of P's failure to file an action on the claim during the running of a specified period of time on the claim.
The distinction between tort and contract is made firstly on recognising whether or not there is a binding contract between the tortfeasor (or his principal) and the victim. If not, the doctrine and principles of extra-contractual tort law are applied. However, there are certain areas where the rules of delict are applied even if there is a contract between the parties. In particular, there is a tradition for tort law reasoning whenever personal injuries are involved, regardless of the fact that the risk that led to the injury was caused by the contract and the fulfilment of contractual duties.
B. EXISTENCE OF A ‘GREY ZONE’?
Under Norwegian law, it is well recognised that there is a ‘grey zone’ between contract and tort. The older traditional doctrine referred to culpa in contrahendo as a situation that required special treatment. As explained below in sec V.A, a modern version of the rules of liability within the grey area falls under the concept of ‘pre-contractual liability’. The doctrine recognises that there is an area between contract and tort law, when the claimant may sue both in contract and in tort, even though neither of the approaches captures all the legal implications. This is, however, a minor problem to the parties involved and to the court. The rather pragmatic approach of the Norwegian legal doctrine allows a recognition of the fact that contractual relations, or something very near to a binding contract, may strengthen the grounds of liability in tort. It is also possible to take account of the contact between the parties in an overall judgement of whether liability should arise on the concrete merits of the case.
C. COMMON OR DIFFERENT RULES REGULATING TORT AND CONTRACT
It would be inaccurate to state that there are common rules governing the two areas. In both areas, one may establish a fact that fulfils the criteria of a legal basis of liability, economic loss and a causal link between the mentioned fact and the loss, but these rules are not considered common to tort and contract. The set of rules are similar, but they are perceived to be two separate regimes.
Public authority liability law in Norway is integrated in the general civil law system. Thus the public authority is treated in the same way as private parties in civil litigation. The general principles of tort law have applied, but with certain special adaptations in some areas. These adaptations are partly generated by statements in the preparatory works of the Compensation for Damage Act 13 June 1969 no 26 (Skadeserstatningsloven 13 June 1969 no 26, skl), and partly generated by statements of the Supreme Court. These adaptations are mainly connected to the application of the rule of liability for culpable acts as a part of the Norwegian version of respondeat superior, see skl §2–1 (1). The fact that the public authority exercises special public functions has had the effect that the culpa standard has been applied in a more lenient manner than it normally is. A more precise outline of this general rule will be given below in no 25 ff.
In other respects there are no special rules concerning liability for public authorities. The fact that questions of liability have been addressed by applying respondeat superior means that the most important discussions have concerned the culpa standard in various types of cases. However, there has also been a special debate on whether there is strict liability or only fault liability for void administrative decisions. While the Supreme Court decisions are ambiguous in answering this question, theorists are divided. Some theorists hold that culpability is required for liability to be established, whereas others maintain that there is strict liability for loss stemming from void administrative decisions. Further details on this point are explained below in no 14 ff.
HISTORICAL EVOLUTION
In the 19th century the prevailing view was that the state had no responsibility at all and could not be liable. This was a legacy from the age of autocracy. In the last part of the century this view came under pressure. As public activities increased, there was a corresponding need for liability rules for damage resulting from public activity.
The Norwegian Act on Product Liability was enacted in 1988. The history of product liability within Norwegian law started, however, in the decades before. Several theorists had discussed the problem in Norwegian and Scandinavian literature. The doctrine accepted that damage that resulted from the dangerous properties of a thing should fall under the doctrine of strict liability for dangerous objects. The doctrine is based on Supreme Court practice and the content is that an owner may be liable for damage caused by a risk that is deemed to be ‘typical, continuous and extraordinary’ stemming from an activity or the use of a thing or property. The doctrine was developed in the decades before 1900. Liability for dangerous things might also be regarded as liability based on the Act on the Sale of Movable Goods 1907. In the literature there was a debate on this question, partly generated by the fact that the preparatory works of the Sales Act was unclear on the relevant point. The view that §43 third section of the Sales Act provided a legal basis for liability for dangerous things prevailed and was supported by a majority of commentators. There was, however, some disagreement regarding the extent of liability and rules of adequacy in this respect.
Typically for Norwegian tort law, the fact that one legal basis is available does not preclude other legal bases from being applied. The liability was in the last part of the 20th century perceived to be based on two legal instruments: firstly the aforementioned provision in the Sales Act, and secondly the uncodified rule on strict liability for dangerous objects or activity.
In 1975 a committee was appointed with a mandate to investigate the liability of producers and distributors of dangerous objects produced and/or sold. The government was informed of and referred to the international investigations on the same matters. Otherwise, the initiative was, however, independent of the international discussions on the subject.
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