Traffic Liability

Convenor: Wolfgang Ernst, Zürich
The focus of this study is injury – primarily personal injury but not ignoring damage to property– arising out of road and railway accidents. (Air and water transport are excluded as being governed by rather different legal regimes.) Injuries arising peripherally from the use of trains and cars (e.g. fires caused by sparks from steam engines) fall outside the study. Rail and road accidents offer examples of new sources of harm that arose almost simultaneously across Western Europe. The area of rail accidents provided early examples of a move from fault liability in some countries, but not in others. Although the context of liability needs to include statutory regulation and extra-statutory standards, as well as the criminal law, the core of the study of both areas remains private law actions for damages and the plasticity of fault ideas.

Outcome

Rail and road accidents have become significant causes of personal injury since the 19th century. Fault liability encountered three problems: speed made evidence difficult to gather, mechanisation made the proof of fault (or even defect) in these types of road accident more complex, and there was the potential for a much larger number of victims compared with accidents caused in the days of the horse and carriage. Three forms of response have been identified. In some countries, there was early legislation to make special provision for such injuries, either taking the area out of fault or making fault easier for the victim to prove. The Prussian railway law of 1838 was an early example of the imposition of strict liability (see also Netherlands 1859; Germany as a whole 1877). In relation to cars, then the German law of 1909 and the Dutch Law of 1924, and Spain in 1962 were based on presumptions of fault or reversals of the burden of proof. (No-fault liability was established in France in 1985, Belgium in 1994.) The second response was for the courts to interpret the existing law on basic delictual liability and modify it in terms of the burden of proof. The Munich Landgericht as early as 1861 considered the running of a railway as always involving fault. In relation to cars, Spain established a presumption of fault in 1931 and reversal of the burden of proof in 1943. Liability for things might be seen as part of this same pattern of adapting the general law on delict to deal with specific problems. The Spanish techniques of presuming fault and reversing the burden of proof are the most common. In more recent years, the strictness has increased by reducing the scope for the application of defences such as contributory negligence (France 1982, Netherlands 1990, plus Germany (by legislation) in 2002). Although Spain and Italy showed early signs of being more indulgent with nascent industries (e.g. liability of railways in 1880s), their position has now changed. The third response was to ensure that the railway company was liable for the actions of its employees (mainly 1870s and 1880s).

A background condition has been the presence of compulsory insurance. Insurance for the driver’s liability was recommended early (world conference in 1910), though it took some time to implement. Whereas England was early (completed in 1930), the French barely ensured compulsory third party insurance before the international convention of 1959.