CYIL vol. 11 (2020)

MARIANNA NOVOTNÁ – VERONIKA TROJČÁKOVÁ CYIL 11 (2020) from that risk is currently a widely accepted rule. Since activities closely linked to the nuclear industry, in the current state of knowledge of science and technology in the field of nuclear energy, are considered as an area with a particular high risk of serious damage to life, health, property or the environment and these risks cannot be completely minimized or eliminated even today (as could be seen in Fukushima Dai-ichi case in 2011) the principle of strict non- fault liability has become a stable part of the nuclear liability regime. Liability of the operator based on objectivity has been adopted at the level of international standards of nuclear liability legislation which forms a base for national legislations of the Member States of the international nuclear liability regime. In addition, the legislation of the States who are not Parties of the international regime also adopted the strict liability regime. The core essence of the strict liability concept 11 which is imposed on the operator of a nuclear facility by nuclear legislation lies in the fact that the obligation of the operator to compensate nuclear damage is linked to the existence and proof of conditions that are of objective nature, such as a damaging event (nuclear event), the existence of damage and causal nexus between a nuclear event and the damage (property damage or personal injury). The injured party is not obliged to prove the existence of fault 12 on the part of the operator as a responsible entity (whether in the form of intent or negligence), nor is it examined whether any wrongful conduct of the operator (e.g. breach of statutory obligations) or unlawful conduct by a third party actually led to the nuclear event. The very existence of a nuclear event, an injury that has the character of nuclear damage and a causal relation between them, i.e. the formation of the risk arising due to the operation of the nuclear industry activities are sufficient reasons for liability on the part of the nuclear facility operator. The concept of strict liability, which was reflected in the drafting process of nuclear liability legislation, was based on liability which at the time of its creation was (and still is) applicable throughout whole Europe. The nature of this concept is based on the thesis that if a certain entity is involved in activities of a dangerous nature and if the objective preconditions are met there applies the presumption of liability of the subject for the caused danger. Presumption of liability for risk in terms of the complete elimination of proving the existence of a culpable unlawful act of a wrongdoer has been due to the specific nature of the danger inherent in nuclear activities incorporated into provisions of nuclear liability legislation, while the specific nature of the danger closely related to the use of nuclear energy is characterized as insufficient manageability of natural forces and substances used in the nuclear field, which, while maintaining an adequate precaution, still represent a certain degree of probability of harmful consequences. A significant motive for the preference of strict objective liability of the operator was also the fact that in the process of using nuclear energy the damage is typically caused by 11 Also referred to as strict liability, liability for the result, liability for coincidence, liability without fault, liability for causing, liability for harmful risk, liability for imperilment, liability for danger, liability under the guarantee principle, etc. 12 Further see HLUŠÁK, Milan „O postihu a zavinení – poznámka k článku profesora Gábriša „Pričítateľnosť (nielen) v trestnom a občianskom práve“ [On Sanctions and Guilt – a note on Professor Gábriš‘s article “Attributability (not only) in criminal and civil law] (2019) 8-9, Justičná revue , p. 956-960. 2. Protection of the injured party in the sense of the socio-legal construction of strict liability

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