Aggregation and Divisibility of Damage (Tort and Insurance by Ken Oliphant

By Ken Oliphant

Even if the damage for which reimbursement is sought in an motion in tort is considered a unmarried indivisible loss or a plurality of losses may have a few very important 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 drawback classes and (where they exist) caps and thresholds. those concerns could have specific importance within the context of mass torts, and lift questions of non-public foreign legislations and civil process in addition to sizeable tort legislation. also they are of substantial functional significance for insurers. during this comparative examine, state experiences from twelve felony structures and certain experiences on inner most overseas legislations and assurance offer an perception into the interplay of tort legislations, civil strategy, and assurance during this hitherto principally missed zone of criminal technological know-how.

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76 77 78 Simotta (fn. 71) § 92a no. 2; Oberlandesgericht (OLG) Wien in EvBl 1990/65. Simotta (fn. 71) § 92a no. 3; OGH in Recht der Wirtschaft (RdW) 1994, 177; SZ 64/123; SZ 63/105. In more detail in this Rechberger-Mayr (fn. 72) § 92a JN no. 5 f. Austria: Tort Law 39 The value of the claim is relevant to all the above-mentioned issues, since not only the court fees and attorney fees but also which court is competent and the legal remedies available depend thereon. 78 The court fees, which are regulated in the Court Fees Act (Gerichtsgebührengesetz, GGG),79 are staggered according to the value of the claim and payable in the form of a lump-sum fee for the entire proceedings at one instance.

27 Therefore, in the instant case, the limitation periods for P’s recourse actions in respect of his payments to A, B, and C commence with that point in time at which it was foreseeable to him that A, B, and C would claim damages because of damaged equipment. 28 Looking at this discussion on prescription problems in the light of the question of aggregation and divisibility of damage, one can say that – although this has not been addressed explicitly – it is decisive for the legal consequences in the field of prescription whether the overall harm caused to the claimant is considered a single loss or a plurality of losses: If it is assumed that the claimant sustained a single loss (primary loss) that consequently increased (secondary loss), this might explain why the limitation period with respect to all losses should commence instantly.

See on this H. Koziol, Schadenersatz für Verlust einer Chance? , Schadenersatz für verlorene Chancen? Zeitschrift des Bernischen Juristenvereins (ZBJV) 137 (2001) 889 ff. Austria: Tort Law 35 evidence does not show whether the mesothelioma resulted from asbestos exposure in any single period of employment, or cumulatively from exposure in different periods of employment. Can D1, D2 and D3 be held liable in your national tort law? If so, is V considered to have sustained a single indivisible loss or a plurality of different losses?

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