CYIL vol. 11 (2020)

CYIL 11 (2020) STRICT LIABILITY AS A LEGAL PROTECTING MECHANISM … instruments applicable to nuclear damage (The Convention on Third Party Liability in the Field of Nuclear Energy 5 and The 1963 Vienna Convention on Civil Liability for Nuclear Damage 6 ) 7 . Despite this separation of nuclear damage compensation regulation from the general civil law liability for damage caused by particularly dangerous activities (or it might be better to say by a source of increased danger) 8 there is also a necessary legal link to a general tort law and its fundamental mechanisms due to the primary civil nature of the nuclear damage compensation regulation (at least in relation to certain legal aspects). In relation to the establishment of the basic principle (liability for fault either in the form of intent or negligence versus liability without fault) which should govern the liability relations within nuclear law a parallel can be observed with the development of general tort law, which over time has evolved since the perception of liability for damage based on the principle of fault (almost absolutely) to the need to form some liability principles based also on causal liability unassociated with wrongful conduct of the wrongdoer based on fault. This turn from the absolute perception of responsibility as liability solely based on fault has within the framework of general tort law led to a growing number of particularly hazardous activities, in which, despite due diligence and thus without the fault of the wrongdoer or the responsible entity there is an increased likelihood of causing serious damage. Fault-based liability has not been able to fulfil its balancing function in these forms of danger and, in addition, most countries have at some point already reached the necessary level of economic stability, which as a result it did not appear necessary anymore to support further economic development through institute of fault based liability. In the second half of the 19 th century the idea that the wrongdoer as an initiator of a permitted but to some extent also dangerous activity should compensate the damage that originates from this specific danger regardless the fault, began to develop. In the 20th century, the concept of strict liability became a strong additional second pillar of the non-contractual liability system 9 and special cases of liability began to develop increasingly, however their regulation could not be subsumed under subjective conditions (fault element) in traditional terms. 10 The principle that a person who creates or initiates an activity of a dangerous nature or benefits from the activity shall also have an obligation to compensate the damage arising The 1963 Vienna Convention on Civil Liability for Nuclear Damage; see document IAEA INFCIRC 500 (hereinafter as „Vienna Convention“). The Slovak translation of the Vienna Convention was published in the Collection of Laws of the Slovak Republic as Notification of the Ministry of Foreign Affairs of the Slovak Republic the accession of the Slovak Republic to the Vienna Convention on Civil Liability for Nuclear Damage No. 70/1996. 7 To other international conventions regulating nuclear liability see HANDRLICA, Jakub, NOVOTNÁ,Marianna “The Vienna convention on civil liability for nuclear damage: past, evolution and perspectives” (2018) 8 Tribuna Juridica 48. 8 See para. 432 of the Civil Code (1964). 9 MAGNUS, Ulrich ‘Tort law in general’, in: Jan M. SMITS (ed.): Edward Elgar Encyclopedia of Comparative Law. (Edward Elgar, Cheltenham, UK 2006) 723. 10 In Germany, strict liability was first statutory established in the Prussian Railway Act of 1838, in Austria by the issue of Railway Act No. 27/1869 (Eisenbahnpflichtgesetz). In France, where strict liability was formed through case law, its origins can be traced back to 1896, when the French Court of Cassation awarded a widow the right to compensation for the death of her husband, who died in an industrial disaster, even though the company’s fault had not been proven. In the commom law system, the foundations of strict liability were laid in Great Britain in 1868 by a decision of the House of Lords by case of Rylands in Fletcher. 5 The Convention on Third Party Liability in the Field of Nuclear Energy (hereinafter as “Paris Convention”). 6

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