CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ NUCLEAR LIABILITY: OLD FEARS AND NEW PERSPECTIVES ON THE CONCEPT … The first category consists of economic loss damages that may be, in the context of the new definition of nuclear damage, expressed as consequential economic losses as well as pure economic losses, depending on whether the particular type of economic loss is derived from damage that directly affects the injured party or a property of the aggrieved party and the obligation to compensate it would be some kind of reflexive effect of the obligation to compensate the primary damage 32 or, on the contrary, whether the particular type of economic loss incurred arose independently of the primary loss defined within the first-generation conventions. The second category concerns the definition of the extent of compensable environmental damage and the third one relates to the extent of the compensability of costs incurred in order to prevent nuclear damage or to minimize its extent (costs of preventive measures). 4.1 New heads of economic loss – consequential loss, pure economic loss The first category of economic losses includes losses that do not fall within the scope of direct damage, i.e. they do not arise directly as the primary loss of life, health or property but they arise as a derived (reflective) consequence of the primary loss (implying a further negative impact caused by direct damage) and thus, they can be viewed as consequential losses. 33 In this context, it may be, for example, reimbursement of medical expenses, compensation for loss of earnings or loss of profits suffered by a farming enterprise as a result of crop contamination. Since consequential loss is a causal construct influenced (in its results) by policy considerations, divergent interpretation of this category can be find at the national level. Some national courts have developed rules that require a more stringent connection between antecedent physical loss and the economic harm which results. Under such rules the court may conclude that plaintiff’s loss was “pure” (hence unrecoverable) because there was insufficient relation to prior physical harm sustained by plaintiff. Yet judges in other systems, employing less exigent notions, may deem the same loss “consequential” and thereby permit its recovery. 34 It should be emphasized that the category of nuclear consequential damages cannot be considered as a concept that would have been brought by the second-generation conventions as a brand new head of recoverable damage. The term damage to property used in the conventions of first generation has been wide enough to be interpreted under general tort law rules as covering the damage to property itself ( damnum emergens ) as well as the consequential economic loss in the extent determined by the law of competent court (particularly loss of profit or loss of expected profit – lucrum cessans ), 35 i.e. any infringement on any proprietary rights resulting in a diminishing of a value of such rights should be recoverable also under first-generation conventions. 36 Much more problematic in this context is the second category of economic losses that can manifest themselves independently of direct personal or property damage (death or personal 32 For more details on the so called Folgeschäden concept, see FIKENTSCHER, W., HEINEMANN, A. Schuldrecht. Berlin : De Gruyter Recht. 2006, p. 335 et seq. 33 Experiences resulting from the general law of torts show that in many cases the extent of consequential damages may significantly exceed the extent of the primary damages themselves. 34 PALMER, V. V., BUSSANI, M. Pure Economic Loss: TheWays to Recovery. In: Electronic Journal of Comparative Law , Vol. 11.3, 2007, p. 8, available at https://www.ejcl.org/113/article113-9.pdf. 35 ŁOPUSKI, J. Liability for nuclear damage – an international perspective. Reflections on the revision of the Vienna Convention. Warsaw: National Atomic Energy Agency, 1993, p. 28. 36 HOLTZ, C. The Concept of Property and Related Issues in Liability Law-Possible Implications for the Paris Convention on Third Party Liability in the Field of Nuclear Energy. In: Nuclear Law Bulletin , No. 40, 1987, p. 88.

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