CYIL vol. 11 (2020)

CYIL 11 (2020) STRICT LIABILITY AS A LEGAL PROTECTING MECHANISM … complex technical equipment and often in difficult circumstances present, which as a result would make a process of finding the true cause of damage or a fault-based unlawful act of a particular person very difficult. 13 In such a situation, the imposition of a necessity to prove a fault on the injured party would mean that, in most cases, due to lack of evidence it would be very difficult to identify and establish the fault of a particular person. The injured party would thus find himself in a situation in which the court would not admit his subjective right to compensation for lack of evidence concerning fault, 14 on the proof of which the recognition of his claim would depend. The requirement to prevent the injured party from lack of evidence and thus to provide him with increased protection as well as easier access to compensation for endangered and violated values (life, health, property) protected by law was one of the starting points to implement the principle of strict liability of the operator. When counting the reasons which led to the establishment of the operator’s liability without fault, possible preventive reasons cannot be overlooked, as liability for damage in general already fulfils a preventive function. By imposing stricter objective liability, the legislator has undoubtedly intended to ensure that operators, aware of the objective nature of liability, should actively and as intensively as possible identify and prevent the real causes of damage (e.g. by improving technical and safety equipment, improving professional qualifications of employees, etc.). The preventive effect of normative regulation thus contributes to reducing the extent of the real risk that is immanent to the activities of the use of nuclear energy and consequently provides broader protection to entities that are exposed to the given risk. 3. Protection mechanisms of a responsible entity The system of stricter liability does not only include mechanisms to protect the injured party, but in order to balance the interests of both parties – the liable party and the injured party – in the strict liability regime there were also incorporated mechanisms protecting the liable entity so that excessive strictness caused by absence of fault element does not lead to unfair results in terms of liability, meaning he would bear the risk which standardly in other circumstances the injured party bears alone. For this reason, the legislator also took into consideration specific circumstances capable of causing an increased risk of activities associated with use of nuclear energy but not related to these activities and the avoidance of which is beyond control of the operator as a responsible entity. If the operator proves the existence of these circumstances precisely specified by nuclear law, he will be liberated (exonerated) from his liability for nuclear damage i.e. he will not be obliged to provide compensation for nuclear damage caused to the injured party by a nuclear event. These circumstances (so-called liberation grounds) within the framework of the mechanism of imposing strict liability protect the operator from bearing liability even in cases 13 Compare with ŠVESTKA, Jiří ‚ Odpovědnost za škody způsobené při provozech zvláště nebezpečných‘ [Liability for damages caused by particularly dangerous operations], (1960) Československá akademie věd, 34. 14 According to Luby, due to his nature as a mental category – an internal phenomenon that cannot be directly perceived empirically as phenomena of the outside world, fault cannot be directly proven. It can be established only by a judgment made on the basis of facts which can be directly proved and which, according to general experience, justify the conclusion of an existence of fault. (LUBY, Štefan Prevencia a zodpovednosť v občianskom práve. Časť I . [Prevention and responsibility in civil law. Part I.], (1958) Slovenská akadémia vied. 603.

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