National Court Practice and European Tort Law (Digest IV)

This fourth project in the Digest of European Tort Law series analyses the topic of the Limits of Liability. It does so comprehensively and comparatively on the basis of superior court decisions from 29 European legal systems and judgments of the European courts. The research is supplemented by a legal historical report, as well as by a comparison with existing harmonisation proposals. In order to secure general accessibility, English was chosen as the language of research. In order to understand the various liability systems better, to accompany the ever-progressing harmonisation of European liability law, and to make sound assessments of future reform proposals, it is vitally important to incorporate the living law forged in the courts fully into ones analysis. Despite this, before the Digest projects began, there existed no broad-based comparative study of case law. Like the preceding Digest studies IIII, dedicated to the topics of Causation, Damage, and the Misconduct foundational for liability, this fourth project will contribute to closing this significant gap in the research. The Limits of Liability now set for investigation are of central importance, insofar as imposing liability for every loss caused by misconduct would lead to a boundless expansion in liability. All European legal systems have therefore developed a broad palette of instruments serving to limit liability, and the results these produce in practice are often more closely aligned than their conceptual diversity would lead one to assume at first glance. The Digest IV study, like its predecessor Digest projects, is supported by the Austrian Science Fund (FWF) (P 33095-G). As with volume III, the Digest IV investigation is being led by Ernst Karner (of the Institute for European Tort Law, Austrian Academy of Sciences and University of Graz, as well as of ECTIL and the University of Vienna). The projects coordinating group includes, alongside Ernst Karner, the following internationally distinguished and renowned tort law scholars: Bjarte Askeland (Appeal Court, Bergen, Norway), Elena Bargelli (University of Pisa, Italy), Martin A Hogg (University of Edinburgh, United Kingdom) and Bénédict Winiger (University of Geneva, Switzerland). The project is being administered scientifically and in cooperation with the University of Geneva organisationally through the Institute for European Tort Law.

In 2003, the Institute for European Tort Law of the Austrian Academy of Sciences and the University of Graz (ETL), funded by the Austrian Science Fund (FWF Österreichischer Wissenschaftsfonds), and the University of Geneva, for Digest I to III under the auspices of the Swiss National Science Foundation, partnered on an ambitious research project: a collection of court decisions from almost every European jurisdiction on the most fundamental aspects of tort law. These cases are systematically selected, analysed and commented upon from a historical, national, EU and comparative perspective. Academic principles aiming at harmonisation - including the Principles of European Tort Law (PETL) of the European Group on Tort Law (EGTL) and the Draft Common Frame of Reference (DCFR) - are also synthesised. This complex study provides guidance for the resolution of cross-border cases and primarily aims at providing an extensive scientific jurisprudential corpus on the European tort law, thus bridging the gap between the application of national law and the increasingly harmonised notion of compensation in Europe. A reference to the 'Digest' project in the Australian High Court case of Tabet v Gett ([2010] HCA 12 (21 April 2010)) testifies to the significance of the project well beyond Europe. Crucially, and uniquely, in the event of the introduction of a European Civil Code, lawyers and judges would have immediate access to case law collected under 'Digest' to give specific content to its provisions. Studies on three central aspects of tort law, natural causation, damage and misconduct (the failure to meet a given standard of required conduct as a basis of tortious liability - Rechtswidrigkeit, Verschulden, faute, culpa) have already been published in 2007, 2011 and 2018 respectively: B Winiger/H Koziol/BA Koch/R Zimmermann (eds), Digest of European Tort Law, Vol I: Essential Cases on Causation (2007); B Winiger/H Koziol/BA Koch/R Zimmermann (eds), Digest of European Tort Law, Vol II: Essential Cases on Damage (2011); and B Winiger/E Karner/K Oliphant (eds), Digest of European Tort Law, Vol III: Essential Cases on Misconduct (2018). Digest IV: Limits of Liability (Grant-DOI 10.55776/P33095) similarly aimed to collect, analyse and compare the most significant case law from selected European jurisdictions, but this time on issues of limits of liability. The project, with 44 researchers from 28 European jurisdictions, began on 1 January 2020 and was completed on 31 December 2023. The study - E Karner/B Askeland/E Bargelli/MA Hogg/B Winiger (eds), Digest of European Tort Law, Vol IV: Essential Cases on Limits of Liability - will be published by De Gruyter in 2024/2025 in print and open access format. Additionally, the results will be made accessible (in English) to a broad platform of users via a comprehensive internet-based database (Eurotort, www.eurotort.org).