Friday, April 4, 2014

Good chances for climate change compensation lawsuits in the Czech Republic

Civil Court in the Czech District of Jihlava
(Image Schuminka Janička)
The classic Czech tort law theory requires three elements for assuming tort: the breach of a legal duty, a damage and causal relationship between the breach and its consequently inflicted harm. The Civil Code Section 415 says that “everybody is obliged to behave in such a way that no damage to health, property, nature and the environment occurs”. This general obligation can be referred to in the case of climate change damages. Furthermore, there must be “fault”. But according to Section 420 (3) fault is presumed, and the tortfeasor has to demonstrate that the damage was unavoidable or not objectively foreseeable (and thus not attributable).

Besides the classic fault-based liability, there are special cases of strict liability. Section 420a of the Civil Code states: “Any person shall be liable for damage which he causes to another person while operating a business.”  Again the tortfeasor may argue that the damage was unavoidable.

Section 438 of the Civil Code provides that multiple tortfeasors are jointly and commonly liable in case of concurrent contribution, regardless of whether the contribution falls under strict liability or on fault. However, courts may also apply the principle of several liability. It is not clear to us on which basis such a decision is taken and whether it is necessary for applying the principle of several liability that a certain part of the damage can be attributed to the individual tortfeasor. It seems at any rate that several liability is the exception and that it requires a special justification to apply the principle of several liability instead of joint and common liability.

Besides the remaining uncertainty regarding the joint and common liability of tortfeasors, the Czech Republic seems to offer relatively good conditions for victims of climate change around the world to get compensation for their damages from defendants operating in the Czech Republic.

N.B.: Why can the Czech Republic (like all other European Union and European Economic Area states) be a forum for damages worldwide?

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