Natural Disaster and State Liability, A Comparative Study

The characteristics of natural disasters (speed, surprise und scale) make them a special case for liability and risk sharing. States play a vital role when it comes to compensating damages due to natural disasters. The following project shall focus on the aspect of government liability in the aftermath of natural disasters in the context of other state funded compensation opportunities provided or supported by the state. Apart from the fact that in Austria there is comparatively little case law on the matter, cases already decided present a rather unsystematic and unsatisfying picture. Courts have been incoherent when deciding how administrative provisions on disaster prevention and mitigation are to be interpreted. Furthermore courts have so far not taken into account that the Austrian state is also providing alternative measures of compensation to victims of catastrophes. Two major aspects are to be dealt with: The first will be to focus on the reasons for shifting damage to the state at all; state funded insurance solutions, other state funded payments and the state`s decision to impose mandatory duties and thereby shift the risk on itself will be discussed. As a second step it will have to ask on what grounds the state can be held liable when not having or negligently having participated in damage compensation, prevention and mitigation. The following cases will be analyzed: a) cases where the damage could have been mitigated by precautionary measures before the disaster happens b) cases where the state fails to provide reasonable support to disaster victims or even causes damage by providing such help and c) cases where damage was caused by some kind of human (state) conduct. The following issues are of particular interest: (1) the question of state discretion when preventing and mitigating disaster and the extent of said discretion; (2) the analysis of administrative provisions (whether it was to protect human life only or property, whether the fact that a large number of people is endangered is relevant to liability assessment, the state`s ability to control the danger, the fact that the state steps in to prevent damage that is originally caused by nature, and potential reliance on state`s conduct; the probability of the event, reliance on the state stepping in the urgency of state help and the speed it has to be provided plus the budgetary restraints of the government (3) causation (mainly the ability to prevent damages due to) (4) fault and contributory negligence on part of the plaintiff. The function of government liability will also contribute to the assessment of a liability system for each particular group of cases. US law on the compensation of damages (mainly the discussion on state discretion and duty) due to catastrophes is of particular interest for the presented study: In the US courts on the federal and state level have decided a vast amount of cases dealing with natural disasters, such as hurricanes, fire, flooding and earthquakes and have established a rich discussion on immunity provisions, discretion and assessment criteria regarding the state`s duty of care. Furthermore the US discussion regarding the phenomenon of natural disasters, damage compensation and procedural possibilities (US class action) and the function of tort law are of comparative interest. Furthermore the discussion on solidarity thinking versus economic efficiency and aspects of social vulnerability are of comparative interest.