EU Law and UK Law

This chapter compares the respective answers of the English and EU systems of administrative liability within a wider comparative study. It focuses on their common and distinctive traits. It does so, first, with regard to the constitutional provisions concerning government liability and its connections with judicial review of administration. It points out, in particular, the different meaning and significance of fault. Next, the chapter turns to the answers given to the hypothetical cases on which the ‘common core’ method is based. As a preliminary remark, it sheds light on the particularities of the EU administration. It then looks at basic principles. It shows that, in relation to procedural fairness, the similarity outweighs the difference between the UK and the EU, while, on substantive grounds, the latter has a general principle of liability, unlike the former. A more detailed analysis also shows that the case law of EU courts has provided increased certainty in respect to the breach of procedural constraints on exercises of administrative power. In the UK, a public authority must owe a duty of care to the claimant to be held liable, and the conditions for an action to be successful are more difficult to satisfy than where the same action is pursued between private individuals.

Corona-Bonds und EU-Verschuldung: Zukunftsvision oder Europäische Naivität?

This article studies the current debate on Coronabonds and the idea of European public debt in the aftermath of the Corona pandemic. According to the EU-Treaty economic and fiscal policy remains in the sovereignty of Member States. Therefore, joint European debt instruments are risky and trigger moral hazard and free-riding in the Eurozone. We exhibit that a mixture of the principle of liability and control impairs the present fiscal architecture and destabilizes the Eurozone. We recommend that Member States ought to utilize either the existing fiscal architecture available or establish a political union with full sovereignty in Europe. This policy conclusion is supported by the PSPP-judgement of the Federal Constitutional Court of Germany on 5 May 2020. This ruling initiated a lively debate about the future of the Eurozone and Europe in general.

Die Empfehlungen des Fintech-Rates zur Regulierung von Blockchains im Lichte ungeklärter Fragen der Haftung

This paper examines the recommendations of the German Fintech Council of March 2019 regarding a future blockchain strategy for Germany. The recommendations are the Fintech Council’s response to the German government’s wish to develop a blockchain strategy. The proposals contain many valuable elements, whereby the principle of liability is neglected. Cases from the short history of blockchain applications prove severe problems and show the extent to which the principle of liability is violated. Liability is one of the fundamental pillars of functioning market economies. There seems to be a tendency in Europe to underrate or under-emphasise the principle of liability when innovative digital developments are looked at. As long as developments are at the experimental stage, there is no objection to this. But in real operation, adequate liability is indispensable. It is the aim of this article to recall this.

5. Negligence: duty of care problem areas

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. The tort of negligence originated as a remedy for property damage and physical injury. However, recovery of compensation for psychiatric injury and pure economic loss, in cases where they were not caused by physical injury or property damage, has proved difficult. Duty of care for psychiatric injury is contingent upon whether the claimant is a primary or secondary victim. This chapter discusses the policy reasons for limiting duty of care for psychiatric injury, the mechanisms by which the law limits duty of care for psychiatric injury, the meaning of ‘pure economic loss’, and the development of the Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) principle of liability for negligent statements. The chapter also examines the ‘thin skull’ rule, which applies to psychiatric injury in the same way as to physical injury.

Covid-19 and medical liability: A delicate balance

During the Covid-19 pandemic, many countries around the world are considering whether and how to provide liability protection to front-line healthcare staff. The guiding principle of liability protection for physicians and others is to ensure that, in a serious emergency situation, health professionals can devote themselves exclusively to their work and to patient care, without the fear of future claims for unforeseeable, but above all unavoidable, injury, loss and damage caused by their conduct. Great care is needed to balance the interests and rights of all those involved. Liability protection could have risky consequences with the final result that doctors will not be protected, but institutions such as health facilities will be even if they were in fact responsible for foreseeable and avoidable damage.

7. General defences

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. The tort of negligence originated as a remedy for property damage and physical injury. However, recovery of compensation for psychiatric injury and pure economic loss, in cases where they were not caused by physical injury or property damage, has proved difficult. Duty of care for psychiatric injury is contingent upon whether the claimant is a primary or secondary victim. This chapter discusses the policy reasons for limiting duty of care for psychiatric injury, the mechanisms by which the law limits duty of care for psychiatric injury, the meaning of ‘pure economic loss’, and the development of the Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) principle of liability for negligent statements. The chapter also examines the ‘thin skull’ rule, which applies to psychiatric injury in the same way as to physical injury.

ORGANISATIONAL TORTS: VICARIOUS LIABILITY VERSUS NON-DELEGABLE DUTY

ON 18 October 2017, the UK Supreme Court decided Armes v Nottinghamshire County Council [2017] UKSC 60. The Court ruled that a local authority could be vicariously liable for intentional torts committed by foster parents against a child whom the authority had placed in their care. The outcome was not entirely unexpected. Less than two decades ago it would have been inconceivable. After all, isn't it the case that the common law does not recognise a general principle of liability in tort for the acts of third parties? And that in so far as it does, it holds an employer vicariously liable for a tort committed by an employee in the course of their employment? This is a very long way from the facts of Armes.