Aggregation and Divisibility of Damage
Whether the harm for which compensation is sought in an action in tort is regarded as a single indivisible loss or a plurality of losses can have a number of important ramifications for the law of tort, for example, in considering compensable damage, the
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Tort and Insurance Law Vol. 26 Edited by the
European Centre of Tort and Insurance Law together with the
Institute for European Tort Law of the Austrian Academy of Sciences
Ken Oliphant (ed.) Aggregation and Divisibility of Damage With Contributions by Ewa Bagińska Andreas Bloch Ehlers Attila Fenyves Suzanne Galand-Carval Israel Gilead Michael D. Green Brooks M. Hanner Ernst Karner Christian Lahnstein Richard Lewis
Attila Menyhárd Alberto Monti Ken Oliphant Olaf Riss Albert Ruda Joseph Solé Feliu Marlene Steininger Thomas Thiede Gerhard Wagner
SpringerWienNewYork
European Centre of Tort and Insurance Law Reichsratsstraße 17/2 1010 Vienna, Austria Tel.: +43 1 4277 29650 Fax: +43 1 4277 29670 E-Mail: [email protected]
Austrian Academy of Sciences Institute for European Tort Law Reichsratsstraße 17/2 1010 Vienna, Austria Tel.: +43 1 4277 29651 Fax: +43 1 4277 29670 E-Mail: [email protected] This work is published with the financial support of the Austrian Ministry of Education, Science and Culture, the European Commission and Munich Re. The sole responsibility lies with the authors, the above-mentioned sponsors are not responsible for any use that may be made of the information contained herein. This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically those of translation, reprinting, re-use of illustrations, broadcasting, reproduction by photocopying machines or similar means, and storage in data banks. © 2009 Springer-Verlag / Wien Printed in Germany Springer-Verlag Wien New York is part of Springer Science + Business Media springer.at Typesetting: Composition & Design Services, Minsk, Belarus Printing: Strauss GmbH, 69509 Mörlenbach, Germany Printed on acid-free and chlorine-free bleached paper SPIN: 12578481 Library of Congress Control Number: 2009941078 ISSN 1616-8623
ISBN 978-3-211-92208-8 SpringerWienNewYork
Preface Whether the harm for which compensation is sought in an action in tort is regarded as a single indivisible loss or a plurality of losses can have a number of important ramifications. If there are several losses, it may be that more than one of the claimant’s interests is affected and that only some of his losses are considered to be recoverable damage. Whether or not consequential loss is regarded as an independent harm, to be addressed separately, or as part of the whole damage also bears upon this question of recoverability, as well as upon the application of statutes of limitation of action. Where there exist liability caps and minimum damage thresholds, the question may arise whether these apply once only, to the whole of the claim, or to each of several different components of the overall claim. A plurality of losses may also be reflected in the application of the laws of contributory negligence. These problems relating to the divisibility of damage may be particularly pressing in cases where there are multiple claimants or multiple defendants. If two or more claimants have rights over the same damaged property (e.g
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