CYIL vol. 10 (2019)

PETR ŠUSTEK CYIL 10 ȍ2019Ȏ The concept of adequate causation is subject to a vivid discussion on – among others – the required degree of probability of the occurrence of a particular consequence 60 . Nevertheless, it may provide the courts with a useful tool for tackling the problem of reflective damages in a much more nuanced and just way in the Czech Republic. Conclusion The problem of awarding compensation for reflective damage is rather controversial and it is solved in many different ways in particular jurisdictions. In many of them, only damages for psychologic injuries are awarded to secondary victims. In the Czech Republic, however, historical development led to the opposite situation: the damages for secondary victims’ emotional distress are awarded while the psychologic injury is not compensable. This practice is untenable for several reasons. It is patently unjust to compensate for less intensive damage and leave the sufferers of more intensive damage without any claim. It is contrary to the new Civil Code of 2012 with its individualistic approach and the strengthening of the rights of the secondary victims. It is inconsistent with the preventive function of tort law and it diminishes the private law protection of the right to life. Furthermore, the established case-law of the Supreme Court of the Czech Republic is based on an obsolete line of argument which stems from the decision of 1976, based on the socialist collectivist ideology and now-abandoned socialist theory of causation. A discussion is necessary for the recognition of reflective damage as a special kind of primary damage which should be imputable under the conditions of relevant causation theory, perhaps the adequate causation.

60 See VERSTEEG, Russ. Perspectives on Foreseeability in the Law of Contracts and Torts: the Relationship between ‘Intervening Causes’ and ‘Impossibility’. Michigan State Law Review. (2011, No. 5), p. 1506. See also, for example, the decision of the Constitutional Court of the Czech Republic of 1 November 2007, I. ÚS 312/05.

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