CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE CONCEPT OF SECONDARY ȍREFLECTIVEȎ DAMAGE … cause and condition 53 . The fact that the primary damage is the cause of the reflective damage, therefore, does not automatically imply that law cannot identify other conditions as legally relevant such as the behaviour of the tortfeasor. Furthermore, older literature distinguishes between the first damage and subsequent (or indirect) damages. The first damage is the very first consequence of a harmful event: for example, if the tortfeasor’s behaviour consists in throwing a stone against a window, the breaking of the window is the first damage. Any other resulting damage, i.e. the intrusion of a thief or rain through the broken window, is an indirect damage. 54 This approach is possible in the frame of the idealistic legal theory which analyses the events in the material world instrumentally in order to win a tool for the best possible legal assessment. Applied to the problem of secondary victims, this approach reflects the fact that the reflective damage, as well as the primary damage, is indirectly caused by the condition which is substantially related to the tortfeasor’s behaviour. The only difference between the primary and the secondary victims is that the latter stood somehow “further away” from the harmful event, but they nevertheless suffered damage as a result of it. Therefore, it is not suitable to speak of the interruption of the causal link. Rather, there is an established chain of conditions 55 . This means that the very distinction between primary and secondary victims is not appropriate. The victims of reflective damage are just one of the victims of the tortfeasor’s behaviour, even though they were initially more remote from the harmful event. Their legal relation to the tortfeasor is separate and exists independently from the relationship between the tortfeasor and the so-called primary victim. The question is, therefore, which of the indirect damages the tortfeasor should be held liable for. The idealistic concept of causation offers several ways to solve this problem. We should mention, for example, the concept of adequate causation, according to which the damage is only imputable if it is a foreseeable (i.e. adequate) consequence of particular action 56 . The foreseeability is usually assessed from the perspective of the hypothetical optimal observer who accumulates all the objective experience of her time 57 . In order to justly limit the scope of imputability, the optimal observer test is usually based on an objective assessment ex ante , i.e. from the perspective of general experience available at the time of harmful event 58 . From the comparative perspective, we may recall the established English case-law requiring the imposition of the duty of care on a defendant to be “fair, just and reasonable” ( Caparo test 59 ): the concept of adequate causation provides this very tool for the assessment of imputability. 53 TILSCH, Emanuel. O příčinném spojeni v právu soukromém. [On the Causal Link in Private Law.] In Pocta podaná českou fakultou právnickou panu Dr. Ant. rytíři Randovi k sedmdesátým narozeninám dne 8. července 1904. [Tribute Paid by the Czech Faculty of Law to Dr. Ant. Knight Randa to His Seventieth Birthday on 8 July 1904.] Bursik & Kohout, Praha 1904, p. 277. 54 Ibid., pp. 279-280. 55 See BEZOUŠKA, Petr. Komentář k § 2959. In HULMÁK, Milan (eds.). Občanský zákoník VI. Závazkové právo. Zvláštní část (§ 2055-3014). Komentář. [Civil Code VI. The Law of Obligations. Special Part (Sections 2055-3014). The Commentary]. C. H. Beck, Praha 2014, p. 1718. 56 See for example KOZIOL, Helmut. Natural and Legal Causation. In TICHÝ, Luboš (eds.). Causation in Law. Eva Rozkotová – IFEC, Beroun 2007, p. 63. 57 See the decision of the Constitutional Court of the Czech Republic of 1 st November 2007, I. ÚS 312/05. 58 Cf. DOLEŽAL, Adam, DOLEŽAL, Tomáš. Kauzalita v civilním právu se zaměřením na medicínskoprávní spory. [Causation in Civil Law With an Emphasis on Medical Malpractice Disputes.] Ústav státu a práva AV ČR, Praha 2016, pp. 92-93. 59 Caparo Industries plc v. Dickman [1990] 2 AC 605.

333