Abgrenzungsprobleme des Haftungsumfangs bei Atomschäden

Abstract

Among the tasks imposed on us by the catastrophe of Fukushima, this article deals with  the large-scale compensation for damages that is now becoming apparent.  

The Act on Compensation for Nuclear Damage (hereinafter: The Act) is applicable to  damages in such a nuclear accident. This article highlights the characteristics of the Act  in comparison to the general law of torts’ compensation for damages, including the Act’s  concentrated and unlimited duty to pay compensation regardless of fault. In addition, its execution involves special procedures (such as special measures for damage compensation  and, if  help from  the state is  necessary, the  Organization  for  Assistance in  Compensation for Nuclear Damages, etc.).  

To determine the scale of liability in practice and to solve conflicts, the Commission  and the Center for Solving Nuclear Disputes have been set up. In accordance with its  tasks, the Commission issues general guidelines that contribute to overcoming out-of court conflicts among the concerned parties and arranges settlements between them.  For substantive determinations, an adequate causal connection is decisive; this concept holds a key position in the guidelines of the Commission (as well as in the relevant  precedents). Damages with an adequately causal connection to the accident are acknowledged to be included in the scale of liability.  

The concept of adequate causation is borrowed from the context of the general law of  torts, which presupposes intent or negligence. Pointing out that this concept does not  imply causation in itself (in the sense of the conditio formula) but rather enriches such  causation with the normative judgment of the scale  of liability became the foundation  for later theories.  

Initial  problems  involve  a  certain  category  of  compensation  for  nuclear  damages:  damages caused by rumors. In this context, the repeatability is questionable – that is to  say, the answer to whether the same situations would arise out of the same conditions  (with a high degree of likelihood). Different points need clarification, and thus there are  a certain variety of opinions regarding the necessity of a strong scientific proof for the  repeatability, or the question about repeatability  as a prerequisite of actual or adequate  causation. In the decisions issued to this point, repeatability seems to be dealt with as a  precondition of adequate causality and judged in harmony with predictability. However,  it  remains  unclear  whether  attention  was  also  paid  to  the  fact  that  predictability  is  a  prerequisite  for  negligence,  whereas  the  liability  to  pay  nuclear  damages  is  indeed  independent of fault. In addition, discussion is necessary regarding the understanding of  the term “repeatability.” In case of damages through a rumor, the probability of occurrence regarding the phenomenon of purchasing restraint of one single consumer within  a set differs from the phenomenon of purchasing restraint of a certain portion of consumers within the set. Therefore, even when taking  the same facts as a basis, the judgment of repeatability depends on the choice of the point of reference.  

Furthermore, problems have been observed with long-term consequences for which it  is difficult to scientifically prove a causal connection. Especially those long-term consequences that have not yet been sufficiently scientifically resolved and whose probability  of occurrence will not greatly increase in the future (such as possible consequences of  long-term  internal  exposure  to  radiation  in  small  doses)  raise  important  questions  regarding the acknowledgment of a causal connection and the determination of the sum  of liability.  

The  aforementioned  problems  arise  because  many  questions  are  still  unanswered.  This applies to the meaning and function of the adequate causal connection (and the repeatability), the characteristics and degree of proof for causality, the division between  the  determination  of  causality  and  the  scale  of  liability,  as  well  as  the  reflection  of  causality in calculation of compensation. However, the relevance of the current situation  will certainly contribute to the solution of these remaining problems.  

(Transl. by the Editors)