CYIL vol. 10 (2019)

PETR ŠUSTEK

CYIL 10 ȍ2019Ȏ

5.3 Wrong understanding of causation: reflective damage as a type of primary damage

The third reason of the unsustainability of the Supreme Court case-law is rather theoretical, nevertheless quite fundamental. It relies on the Supreme Court’s core argument that the causal link between the primary and secondary damage is interrupted that is however not well- founded. The argument is ultimately based on two presumptions embedded in the socialist legal doctrine. The first one is already mentioned above: the interests of the social organisations in the socialist economy were prioritized over the interests of individuals by the collectivist state ideology. The second reason is that the socialist theory of causation did not provide the courts with more elaborate possibilities to limit the tortfeasor’s liability in cases of reflective damage. Since the law only acknowledged natural causation, 46 in other words the conditio sine qua non test (in effect, the but-for test), there were in any case only two options: the causal link was either established or not (in which case it the causal link was referred to as interrupted). The concept of interruption of the causal link is, however, rather controversial and not fully capable of providing a comprehensible reason for the irrelevance of a particular condition 47 . Helmut Koziol, for instance, considers the said concept “rather unconvincing” since “[i]f the defendant’s activity made the third person’s intervention possible, the defendant has created a condition sine qua non for and thus the causal connection undoubtedly exists” 48 . This is even more so in cases where the causal link is supposedly interrupted not by an action of a third party, but by a consequence of the tortfeasor’s original behaviour. It may be reasonably argued that the concept of interruption of the causal link should be replaced by a much more nuanced limitation of imputability. Natural causation as a sole theory of causation is not only insufficient but also self-deceiving. Franz Bydlinski and Helmut Koziol convincingly explain that in law, causation is assisting in solving issues of legal liability and therefore is always normative 49 and not purely natural or factual factor 50 . This debunks the materialist approach to causation as rather delusional and opens the door to a traditional idealistic understanding, to which the Civil Code of 2012 returns 51 . The idealistic legal theory makes it possible to tackle the problem of causation in a much more sophisticated manner 52 . For example, an influential Czech expert on private law of the turn of the 19 th and 20 th century, Emmanuel Tilsch, acknowledges the distinction between 46 See ORLICKÝ, R., ŠVESTKA, J., JEHLIČKA, O. Komentář k § 420. [Commentary to Section 420.] In ČEŠKA, Zdeněk, KABÁT, Jozef, ONDŘEJ, Josef, ŠVESTKA, Jiří (eds.). Občanský zákoník. Komentář. Díl II. (§ 222 až 510). [Civil Code. The Commentary. Part II. (Sections 222 to 510).] Panorama, Praha 1987, p. 476. 47 See KOZIOL, Helmut. Natural and Legal Causation. In TICHÝ, Luboš (eds.). Causation in Law. Eva Rozkotová – IFEC, Beroun 2007, p. 61. 48 Ibid., p. 61. 49 BYDLINSKI, Franz. Causation As A Legal Phenomenon. In TICHÝ, Luboš (eds.). Causation in Law. Eva Rozkotová – IFEC, Beroun 2007, p. 8. 50 KOZIOL, Helmut. Natural and Legal Causation. In TICHÝ, Luboš (eds.). Causation in Law. Eva Rozkotová – IFEC, Beroun 2007, p. 56. 51 See JANEČEK, Václav. Kauzalita a rozsah odpovědnosti. [Causation and the Scope of Liability.] Právník. (2016, Vol. 155, No. 11), pp. 959-981. 52 This openness to various conceptions of causation sometimes leads to very controversial concepts such as vividly debated loss of chance doctrine. See for example HOLČAPEK, Tomáš. Doctrine of Loss of Chance in Medical Malpractice Cases: Comparative, International and Transnational Aspects. In Czech Yearbook of Public & Private International Law. Česká ročenka mezinárodního práva veřejného a soukromého. Vol. 8. Česká společnost pro mezinárodní právo, Praha 2017, pp. 444-457.

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