CHAPTER 20

WHAT DOES RISK-REASONING DO IN TORT LAW?

MATTHEW DYSON

This chapter is a draft of the conclusion to an edited collection on how private

law (particularly tort law) conceives of risk, generates liability from risk and
seeks to use liability to control risk. It is made up for 18 substantive chapters,
two each from England, France, Sweden, Italy, Spain, the Netherlands, Chile, South
Africa and Brazil. The volume will be published later in 2017 by Intersentia.
Reasoning about risk simultaneously challenges and enriches our understanding of
private law. For our purposes, �risk-reasoning� has meant analysing or explaining a
legal phenomenon by reference to risk. Risk-reasoning might add, alter or take away
from the law, but how and why does it do so? The core question this volume has
examined is �what does risk-reasoning do for tort law�? The book has looked at that
question from three perspectives: 1. What is �risk�? 2. How do legal systems
generate liability from risk-taking? 3. How do legal systems control risk-taking
through imposing liability? This chapter explores how our national legal systems
have answered these questions. In short, it appears that risk-reasoning offers two
different functions. First, risk has a normative function: it justifies and limits
liability. It most commonly does so as a test for fault, by asking what risks were
unreasonable to take. It is also often a claim that taking/generating/imposing
particular risks which then eventuate can generate liability without regard to
fault. Risk-reasoning can also have effects on tort law, typically by
reconceptualising what has been done to the victim (causation and
damage/harm/loss), such as by treating loss of a chance or the imposition of a risk
as a harm in themselves. Second, it has a non-normative function: claiming both to
be more flexible as a form of reasoning and to better represent the reality that
the law must govern. By way of very simple introduction, we might map our legal
systems onto a spectrum of how relevant and how overt their risk-reasoning is.
Fuller details follow in the rest of this chapter. As a baseline, all of our
systems recognise risk-taking as part of finding fault. At one end, representing a
minimal role for risk-reasoning in tort liability, we have South Africa. Risk-
reasoning is present within tort law, but not strongly influential. While a leading
South African jurist, Van der Walt, did urge risk-taking be a general ground of
liability without fault, no such development has happened. The strong link to Roman
law seems to have been a cultural brake against the development of a wide liability
for risk-taking or even a general theory about risk-taking and no such theory is
evident. South Africa�s uncodified legal system has permitted historical,
procedurally determined categories which resist substantive analysis and inhibit a
unified pan-delictual theory of risk.1 Slightly further down the scale sit England,
the Netherlands and perhaps a little further, Chile. English law recognises
instances of strict liability, and engages with risk theory more than South Africa,
but nonetheless has not developed that far towards a dominance for riskreasoning.
There are fewer strict liabilities than many other systems and risk-based theories
do not dominate explanations of tort liability. Also nearby is Chilean law, as a
system predominantly focused on fault while also able to deploy risk-reasoning.
Specific statutory examples of strict liability exist, but no general clause linked
to risk. In practice, there are a number of presumptions of fault and specified,
often high, standards of care. Slightly further along the spectrum we find the
Netherlands. The Dutch legal system formally does not use risk-reasoning to
generate non fault-based liability. However, it does attribute certain activities
or harms to a defendant as his �qualities�, in part as an analysis of the risks
which are his responsibility. We can then move towards the other end of the
spectrum, with countries like France, Spain and Italy. In all three places,
overarching theories of risk have played an important role in developing tort law
towards reverse burdens of proof. French law adopts organic and flexible ways to
ensure compensation, at least in part as a result of a world view where risks
should be borne by their creator or beneficiary. The French development of victim-
friendly rules and a �compensation ideology� is not unbounded: fault is still
central, if perhaps more malleable than in some other countries, and the necessity
of limits on compensation are acknowledged.2 Spanish law went even further,
formally reversing the burden of proof of fault once damage had been shown, but has
retreated somewhat from that position. Italian law is slightly less focused on
showing harm as the first and most significant step to liability, and there is some
dispute about the precise importance of risk-reasoning. There is certainly a
sizeable school of thought which draws together a number of provisions of the Civil
Code and explains them as risk-based and where a presumption of fault is illusory.
At the far end of the spectrum, we have Brazil and Sweden. These two systems each
allocate the risks of life�s misfortunes very differently to the other systems in
our study. Brazil has remarkably extensive strict liability, whose purpose seems to
be to redistribute risks as part of a political process of sharing losses in
society. This wide liability does not seem to flow from instrumental reasons about
improving safety, but is rather based on who can bear the loss in the first
instance. But the methods utilise tort law directly, using litigation to impose
liability which will then be met by insurers or large companies. This requires the
actual or potential litigation to be a real threat, with procedures enabling access
to such justice and reducing or discounting the litigation costs involved. By
contrast, Swedish law communitises risk by providing extensive but incomplete
compensation outside of tort law. A state organised system of insurance provides
pragmatic protection for key interests like physical integrity, with private
insurance available to complete the coverage. We turn now to explore how our
systems conceive of risk, before looking at liability for risktaking.

1. THE CONCEPT OF �RISK�

Our systems seem to employ a working definition of risk: the probability of a
negative outcome
in the future. 3 Three sets of issues in this definition need unpacking. First, it
is inherently flexible. For example, some legal actors refer to �risk-taking�,
focusing on the defendant, others to �risk generation�, which is slightly more
neutral; yet others to �risk imposition�, focusing on the victim. Another example
is the difference between �risk� and �danger�. When our systems create strict
liability for highly risky activities, they label it as liability for �dangerous�
or �ultra-hazardous� activities rather than �high-risk� or �extreme risk�, perhaps
to give a sense of imminence or linguistic clout. Yet as Albert Ruda points out,
both peligro (danger) and riesgo (risk) are often used interchangeably, both
related to the Latin word periculum. aand indeed the English word �risk� might come
to us via Spain. Go further back, as the Dutch do, and you hit a literal �cliff�,
the Greek term �rh�za�, leading to the Dutch �risico� of 1525. At the same time,
the work of Ulrich Beck on the �risk society� distinguishes between danger (natural
causes) and risk (manmade); this work has been increasingly influential. A further
alternative is that �risk� precedes �danger�, as Spanish criminal lawyers have
discussed. If legal actors used these terms precisely, they might reveal
interesting insights about what risk-reasoning is doing at any moment. However,
their flexible usage instead fits into a wider trend amongst practitioners and
courts not to spend too long on difficult-to-resolve conceptual issues. This kind
of discussion plays out particularly in sections 2.4 and 2.5 of this chapter,
dealing with causation and harm, damage and loss. Second, there is an important
comparison between risk and other ways of framing the relevant issues. Risk must be
set against other things, like opportunity, such as the commercial opportunity or
the taste of a particular meal. We see evidence of cultural attitudes to the risks
as compared with claims for mere emotional harm and hunting (restrictive).
Finally, we have to ask how legal actors respond to the idea of risk, since their
responses might be more significant than their definitions. Indeed, while risk
might be thought of as a spot between impossibility and certainty, it will
nonetheless have to be framed and judged by an observer to have meaning. Even
without a technical definition of risk, individuals have to live lives guided by
their perception of the risks that might occur. They might be risk averse, or
perhaps price risk into a transaction. Risk is also necessarily a comparison, since
the risks we run are the opportunities we seek. The general point about the
perception of risk was put neatly by our Dutch authors: �sociological and
psychological processes, such as world views, social norms, biases and heuristics,
influence the perception of risk and the perceived necessity to take precautions.
Ultimately, such factors might lead to a discrepancy between how actors perceive a
risk and that risk as defined by natural scientists. As a consequence, the
effectiveness of precautionary measures, especially warnings about risks, is
particularly difficult to optimise�.

2. SUBSTANCE
The legal rules in each of our systems show us how risk-reasoning can affect tort
liability and the bulk of this chapter will categorise and explore how that
happens.

2.1 STRUCTURE
To understand risk-reasoning, we first need to see how it is integrated into tort
law. The single most obvious way is that testing for fault in the form of
negligence often involves considering what risks the defendant took by his conduct,
discussed in section 2.3 below. However, there are many other ways risk-reasoning
affects tort law, particularly in how it is used to justify strict liability,
establish causation and shape concepts of harm, damage and loss.

2.1.1 Risk regulation outside of liability

First, we must assess how risk-reasoning outside legal doctrine might be relevant
to the shape of the law. Both public and private actors have developed three
overlapping approaches to respond to risk. First, there are reductive mechanisms,
seeking to lower the risks tort would have to engage with. Some examples are about
how activities should be undertaken, such as requiring risk assessments; other
examples are wider, such as licensing or permission requirements for activities
ranging from driving to handling waste or running a game preserve, in order to
ensure trained, regulated and/or identifiable people are involved. Second, there
are compensation-enabling mechanisms which ensure that the tort system can
compensate effectively when risks eventuate as harm. These include compulsory
insurance and liability insurance or the holding of sufficient funds to meet
certain types of claims. Related, but more generic in their effect, are any
mechanisms which make the trial more effective or efficient, such as rules of
disclosure and rules affecting access to justice like class actions and litigation
funding. Of course, the second order enabling mechanisms might also have reductive
effects. For example, high-risk individuals might not be able to obtain insurance
and might choose not to undertake the activity. Finally, there are cost-sharing
mechanisms, such as social security support and ex gratia payments for specific
harms. These mechanisms are not triggered by court judgments and typically have a
less direct process of funding and/or spreading the risk to taxpayers. They
therefore include first-party insurance. They might enable victims to be
financially supported enough to then bring a claim, but it is not their purpose.
Typically, our systems seek to reduce, enable and, only then, share.16 That is,
prevention is thought to be better than cure, and private response is preferred to
cost-sharing, so long as the state provides a minimum safety net. The state seeks
to avoid risking overreaching and paternalism while also acknowledging it is
politically viewed as an insurer of last resort (see further section 4.3.3 below).
There is also a tension between reducing risk and enabling compensation and sharing
costs, since the latter might encourage parties to take less care (see further,
section 4.3.2). These three approaches operate outside of tort law, but they still
have effects on tort liability. Reductive mechanisms seek to reduce the harmful
events. They might thereby reduce tortious events. Indeed, the egregiousness or
frequency of tortious wrongdoing is one possible reason to employ a reductive
mechanism. The enabling mechanisms are more directly linked to tort law since their
very purpose is to make tort compensation more real or easily available and/or
carrying greater deterrent effect. While this might be compensation outside of
tort, the primary quantifiable mechanism is the threat of being made by a court to
pay tort damages. The costsharing mechanisms provoke a comparison with tort awards
of damages and especially in how any benefits received as a result of the tort
affect tort liabilities. In addition, the burden of paying out benefits might
incentivise the payer to act to reduce risks where possible, whether directly, or
by passing the liability to another and thus incentivising that party to reduce
risks.

2.1.2 Risk and Wrongfulness

Risk-reasoning is clearly expressed in many forms of tort liability. Risk-taking is
a common reason why fault might be found: that an inappropriate risk has been taken
to the detriment of another. However, perhaps more revealing is where our legal
systems have created liability without fault and how they justify it. Often risk-
taking marks out particular conduct leading to harm as unlawful, prohibited by law
and leading to compensation for harm caused; but riskreasoning might go further,
finding that conduct is in fact wrongful, in the sense of a breach of a duty owed
to the claimant. Typically this is a relational duty not to infringe another�s
relevant right, such as the right to personal integrity. Wrongfulness expresses the
grounds for why liability should exist, whereas unlawfulness merely states the fact
of the liability being imposed. Even if a legal system often does not have to
resolve the question whether risk-taking is merely unlawfulness, or actually a
wrong, that question is interesting. First, it might tell us what a legal system
thinks is important enough to make a right, since that will determine what
interferences are wrongful. It might also matter who is interfering with a right.
Where the claim is that conduct is wrongful, that claim would commonly be defeated
if the victim consented to the harm or the risk of harm. This might be because
there is no wrong when C consents to D�s interference with his rights. By
comparison, in unlawfulness, consent does not have an automatic role to play since
conduct could be made unlawful for reasons unconnected with consent or rights. That
general structural difference might explain why some tort claims which might not be
wrongs, such as claims under the European Product Liability Directive 1985, do not
include a defence of consent. In that case, the claim is concerned with the fair
allocation of risks, and the consumer�s apparent or factual consent is not relevant
to the allocation the Directive sets. Finally, defences might operate differently.
Some remedies might only be available, or perhaps only in practice employed, where
the conduct is wrongful rather than merely unlawful. For example, a potential
victim could obtain an injunction against a threatened nuisance or trespass, or
even negligence if known about in advance. However, can you get an injunction in
respect of threatened personal injury under the defective product liability regime,
where the defendant probably interferes with no right of the claimants? In English
law, the quia timet injunction is to prevent �an apprehended legal wrong�, raising
the possibility such injunctions would not be available to non-wrongs. The
difficulty is that injunctions prior to harmful events appear not to be that
common. Where they are used, they might be brought in a wrong-based tort action,
such as negligence rather than product liability. It might depend on the form of
product liability, such as in a separate tort action or part of a tort like
negligence. Our systems show no evidence of using risk-reasoning explicitly to
generate new rights one person has against another. This is particularly apparent
when new forms of liability are being created. In effect, the added justificatory
force of risk-taking being a wrong has not been needed for our legal systems to
create pockets, or whole swathes, of strict liability connected to risktaking.
However, risk-reasoning does seem to reconceptualise breach of those rights,
widening the conditions of liability and new areas of strict liability. Given the
historic development of fault-based liability as the core of tort liability,25 this
is particularly interesting.

2.1.3 Risk-reasoning within tort claims

We now turn to look at how risk-reasoning has taken form within different types of
claims within tort law. After this, we will look at its role in foundational
components like fault, causation and damage, harm and loss.

2.1.3.1 Neighbour relations

Neighbour relations often appear to be a source of strict liability; it is also
liability based on wrongdoing as interference with property rights. This can be
seen in France (troubles anormaux de voisinage) and Sweden; in Spain too, though
there it was inspired in part by a preventive public law regime.28 The wrong seems
to be in the risk being taken over harm to another�s property being unacceptable by
some objective standard. The importance of real property to our legal systems, both
historically and today, might explain the willingness to link property rights to
risk and produce a risk-taking wrong. A particularly interesting example of risk-
reasoning which appears to be expanding the wrong of interfering with property
rights, without referring to fault, is seen in England, in the tort of Rylands v.
Fletcher. A person who accumulates a dangerous non-natural thing on his land, which
escapes and causes damage, is liable to compensate the person who suffers such
damage. The rule was created by case law, not statute. It is a strict liability
wrong, though there are defences for proving that the escape was due to vis major
or the act of a stranger. As one judge said, �[t]he wrongful act is not the making
or keeping the reservoir, but the allowing or causing the water to escape�. it is
no part of the rule in Rylands v Fletcher to forbid particular activities. Rather �
it is a rule which requires those who pursue particular activities to internalise
the costs of escapes. It is a rule about who pays when things go wrong rather than
about whether the defendant�s activity is wrongful.� This also means there cannot
be an injunction prior to the escape, since an injunction requires a wrong and
there is no wrong until the escape. The tort is expressly based on the risk the
accumulator creates, and does so for his own benefit. A leading commentator at the
time encapsulated the rule thus: �the law takes notice that certain things are a
source of extraordinary risk, and a man who exposes his neighbour to such risk is
held � to insure his neighbour against any consequent harm not due to some cause
beyond human foresight and control.� English lawyers considered developing Rylands
v. Fletcher into a generalised tort of strict liability for �ultra-hazardous
activities� but ultimately rejected that course.33 Nonetheless, the presence of
even a very narrow risk-based strict liability tort was a focal point for debating
the wider merits of such a rule. Certainly by the late twentieth century, strict
liability was thought to be best created and delimited by the legislature. By
comparison, generalisation continued unimpeded in the United States, where an
ultra-hazardous activities tort appeared at least by the time of the first American
Law Institute Restatement of Tort Law.

2.1.3.2 �Dangerous activities�

A number of our jurisdictions have relatively recently developed presumed fault or
strict liability for �dangerous activities�. This is certainly based on risk-
taking. It is unclear if they are wrong-based, but they do seem to mirror duties in
negligence, which are typically described in the common law as being based on
underlying rights. It might potentially be based on a right not to be harmed
through another�s dangerous activities. Italy gives us a paradigmatic example of
liability for dangerous activities. Article 2050 of the Italian Civil Code says:
�Whoever causes injury to another in the performance of an activity dangerous by
its nature or due to the means employed is liable to pay compensation, unless he
proves that he has taken all suitable measures to avoid the injury.� This
presumption of fault can be very difficult to rebut, typically requiring force
majeure. Article 2050 was a key stepping stone for the influential Italian jurist
Trimarchi�s theories on risk. Trimarchi argued that everyone who profits from an
economic activity should pay for the harm that activity generates. Fault, even
presumed fault, was an insufficient foundation for tort liability in respect of
risk-taking situations. While the standard liability for fault, article 2043 CC, is
still seen as �the� article on extracontractual liability, article 2050 has taken
on a greater role in responding to new or wider use of dangerous activities.37 It
now seems to cover many (but not all) sports,38 running hotels,39 railways and
local authority road works. Article 2050 has even been used in preference to the
Product Liability Directive, for gas cylinders, pharmaceutical products and blood
products. The most extreme position on regulating risk-taking activities through
civil liability might be that in Brazil. Brazil has very wide strict liability,
both through article 927 of the 2002 Civil Code and through articles of the Code of
Consumer Protection. Article 927 allows courts to determine that an activity poses
a risk to others, and thus trigger strict liability. It is founded on risk, as
suggested by the reference to the harmful nature of the activity and the academic
debates and workshops. Yet, article 927 is in fact rarely used; there are so many
other more specific forms of strict liability which take precedence that this
general rule is of much less importance.44 In particular, the strict liability
under articles 12 and 14 of the Code of Consumer Protection covers all products and
services supplied to consumers, leaving much less need for the specific dangerous
activities provision, article 927. In Sweden, there are pockets of both legislative
and judge-made strict liability for activities which are dangerous, but no
principle of a general �dangerous activities� tort. Those pockets cover �modern�
phenomena, such as car, railway and airline traffic and nuclear power stations, but
courts have also extended it to cover things like pipes, especially water pipes.
Spain gives us an example of another approach: a public law regime seeking to
prevent damage from dangerous activities, which has inspired developments in the
jurisprudence under the Civil Code as well. This Regulation on Disturbing,
Unhealthy, Harmful and Dangerous Activities dates from 1961, around the same time
as Trimarchi was writing in Italy. Chilean law is particularly interesting. On the
one hand, it formally uses a presumption of fault in cases of �dangerous
activities� rather than strict liability; on the other hand, it expressly mentions,
apparently as examples, three activities: discharging a firearm, removing the slabs
that cover a street ditch or a pipe, and keeping in a poor condition an aqueduct or
bridge that crosses a road.46 These provisions have been hotly contested, with
different interpretations ranging from simply reinforcing the requirement of fault
through to a full presumption of fault for all dangerous activities. What is
particularly interesting is how our Chilean authors explain the benefits of such
presumptions: �[a presumption] overcomes the institutional hurdle � since it is not
a strict liability rule, it does not necessarily have to be reserved for the
legislator; and as this presumption remains rebuttable, it seems to be a less
radical solution and one closer to the general rules, which makes it a less
daunting option compared to a general clause of strict liability. The difficulty
that remains, however, is that of delimiting the scope of application of the
presumption: the very notion of a dangerous activity is elusive and there seems to
be no �essence� to it, for courts resort to a range of elements in order to qualify
the activity as relevantly dangerous, like the extent of the probable harm,
society�s sensitivity to certain harms, the costs of prevention, and so forth.� In
addition, in Chile, legislative rules specify what measures must be taken to have
taken care, measures which are often considered in terms of the relevant risks to
be avoided. Breach of those measures creates a presumption of fault which is
difficult to rebut. The rules cover a wide range of activities, from driving to
trading on stock markets, from products to services.48 The rules have to be updated
regularly, an example of non-judicial adaptation to risk regulation.

2.1.3.3 Animals
Some kind of strict liability for animals under one�s control appears to be well
established across our legal systems.49 One of the earliest ancestors of such a
rule appears still to be thriving in South Africa, 50 where it is perhaps the most
obvious example of strict liability outside of statutes, and Chile.51 The rule
typically extends to straying cattle as well as other more directly �domestic�
animals. There appears to be a fundamental tension in what risks from animals are
the owner�s/keeper�s, and which are the victim�s.

2.1.3.4 Things
France and Italy both have a form of stricter liability for the things under one�s
control which cause harm. According to one of the most influential and earliest
authors, Saleilles, the control of things entailed the liability for harms they
might cause. �Any activity for the benefit of one person creates a risk for
another� and �the person who controls that activity has to bear the risks it
creates � This is liability for things. Having the custody and the direction of a
thing means accepting to bear the risk for the way it functions�. After being
further developed by Josserand, this conception still grounds French liability
today. Interestingly, while Spanish civil law has been strongly influenced by
French civil law, Spain does not have a general liability for things. The classic
Roman rule of strict liability for things which fall from buildings also survives
in some of our systems, such as in Chile and perhaps in South Africa.58 A modern
twist is that many such buildings will now be occupied by more than one possible
defendant, all of whom will be liable unless it can be shown to be due to the fault
of a particular person.

2.1.3.5 Consumers: Products and Services

The Product Liability Directive created a form of strict liability for the
producers of defective products within Europe and a similar provision applies in
other countries, including Brazil. Product liability tort actions do not appear to
be wrongs. Our systems do not have to frame defective product rules as a right the
claimant has against the defendant, though perhaps they could. The key practical
test in most potential claims is what counts as �defective�: the Directive holds a
product defective if �it does not provide the safety which a person is entitled to
expect, taking all circumstances into account�. At both a national level and at
the level of the European Court of Justice itself, risk-reasoning has been key.
Outside the Directive (and Brazil), Chilean law operates a presumption of fault in
case of defective products. It might be thought South Africa does as well,65 but in
fact the two relevant defences are very narrow, so the position appears to be
similar to the level of strict liability imposed by the Directive. It has been
argued that this is a risk-taking-based liability, but the point has not been
settled. The very wide extent of strict liability for injuries to consumers in
Brazil may be one of the most surprising aspects of risk regulation explored in
this volume. The Consumer Protection Code of 1990 uses broad general clauses which
do not expressly refer to risk but which do impose strict liability for harm done
to consumers. It appears accepted that the logic behind the provisions is in fact
risk: that all consumer transactions have as a fundamental feature the allocation
of risk between the consumer and trader.66 As our Brazilian authors put it:
�Article 8 of the 1990 CDC states that products and services made available to
consumers cannot cause harm to the health or safety of consumers, while one of the
core values that underpins the 1990 CDC is the protection of consumers from risk in
the sense [of] �danger of harm�.� Thus articles 12 and 14 of the 1990 Code impose
strict liability respectively for producers of defective products and suppliers of
defective services in similar terms to the Directive. Article 14 has a set of
exceptions for the liberal professions, like lawyers and doctors, who remain liable
only for fault.69 While strict product liability is known to many legal systems,
strict consumer services liability is unusual. It seems to be based on a pro-victim
attitude. The interesting issue of how such wide liabilities are enforced in
practice is sadly beyond the scope of this work.

2.1.3.6 Special high-risk categories

There are some traditionally dangerous or high-risk activities and things which
seem to have had strict liability rules based on their risk for a long time. These
include the handling of fire and, a little later, gas. They have been expanded to
more modern risks like nuclear power, collapsing buildings, processing of personal
data, and skiing (in Italy: though a presumption of fault). The Netherlands imposes
strict liability for, inter alia, mining activities and the pollution caused by a
refuse dump.76 As described in detail in Chapter 15, Spain has strict liability
rules for hunting.
2.1.3.7 Road Traffic Rules
Many of our legal systems have special strict liability rules for road traffic.
Often these are justified by the dangerousness of driving, as well as the ease of
spreading those risks by insurance. These are noted in brakeless lorry (case 4),
discussed below, but it certainly includes France, Sweden, Italy, Spain, and the
Netherlands.

2.1.3.8 �Quality�
Finally, in the Netherlands, risk appears as something the defendant is responsible
for by being transposed onto the defendant personally as a �quality� he had. It
does not appear that this characteristic of �quality� turns in any way on whether
the conduct was a wrong. As our Dutch authors put it: �The essence of a qualitative
liability is the link to quality and the risks that come with the persons, objects
or animals for which the defendant is responsible.. For this reason, the Dutch can
sometimes find discussions of �strict liability� to be slightly unhelpful, since it
lacks the further perspective provided by focusing on these �qualities�. For this
purpose, the subjective perspective of the individual is not important, only the
level of scientific/general knowledge in determining that such a quality is
justified. This conceptualisation is unusual, even if the actual forms and levels
of liability are similar to other legal systems, like France. The different routes
to the special risk-based liability are explored in Case 2. Case 2: out-of-control
go-kart C is injured by one of his neighbour�s (D) go-karts, which was being
repaired in the garden: the engine went out of control and drove off, went through
a fence and hit C. This example tested the line between vehicle-as-risk reasoning
and �dangerous activities� reasoning. It sought to find the line between strict
liability and any residual liability for fault. Many of our systems find strict
liability rules in this scenario. France would deal with the go-kart as a �thing�,
generating strict liability for the person in control of it if it moves or behaves
in an abnormal way, as it does here (Ch. 3.3.1). Spain probably would (Ch.
6.3.1.3), and Sweden might (Ch. 4.3.1.1; otherwise fault liability would apply: Ch.
4.2.2.1), manage to fit this scenario into its strict liability road traffic rules.
Italy would likely class the go-kart work as a �dangerous activity� and thus under
strict liability, with case law already deciding so when engaging in racing (Ch.
5.4.3), noticing that the wider �dangerous activities� liability is, the less
pressure there is for a wide liability for �things�, even though that liability
does exist in Italy. Chile might classify the events as a dangerous activity which
creates a presumption of fault (Ch. 8.3) but the matter is uncertain. Indeed, for
some of our systems, D�s liability would be a question of fault, not strict
liability (e.g., Ch. 2.4.1; 3.3.1; 7.5.4.2; 9.3; 10.3.3). The answer would
therefore depend on what a reasonable person would have done in working on the go-
kart.

2.1.4 Clashing risk regimes

The final issue of structure is how different liability regimes based on risk might
clash and have those clashes resolved. In some cases, systems simply deny a clash
exists: all routes to liability are equally valid and the claimant can select or
bring more than one as alternatives. That is normally the position in England, for
instance, where a claimant could bring her claim in Rylands v. Fletcher, nuisance,
negligence or even product liability, so long as the facts supported each claim.
This position is relatively uncontroversial, in part because the English do not
have many specific risk regimes commonly used in litigation, and generally see no
difficulty in combining actions capturing different reasons for liability. However,
in other cases our systems have to resolve clashes and decide which is the �right�
way to reason about risk. For instance, the Court of Justice of the European Union
has even been called in to decide whether the Product Liability Directive was the
mandatory regime for all product-related risks: it was, for all strict liability
claims in tort.85 This resolution was in the face of national compensation pre-
Directive having been more generous to claimants. Similarly, the generous rules in
the Brazilian Consumer Code were given legislative priority over other rules,86 in
order to protect consumers from excessive risk. A classic conflict can be seen in
road traffic regimes. If a driver is strictly liable for harm caused by his driving
on the road, what of where two drivers are involved in causing the harm? The
solution with the lowest transaction costs is that each driver only claims against
his own insurance, but that does not necessarily allocate the losses fairly. A
common solution is that each driver is liable for his fault in contributing to the
accident, even in a strict liability regime. Many systems also have minimum
protections for pedestrians and cyclists, such as restrictive interpretations of
contributory negligence and caps on such reductions. Another road traffic clash is
noted below, in the discussion of Case 3: employee truck driver (section 2.2), of
road accident strict liability along with vicarious liability for the driving of
the employee. Two final and most intriguing conflicts between national risk regimes
are explored in depth in two chapters in Part II of this volume. The first, in
South Africa, turned on whether an award under an occupational compensation scheme
precluded a tort claim. The Constitutional Court �took the view that the no-fault
statutory schemes alone failed to establish a just and constitutionally-compliant
distribution of the risk of occupational disease in the mines�. The second, in
Spain, highlights the influence of politics on liability rules. Those who run
hunting preserves from which animals escape, and those who drive on roads, were
each strictly liable for the harm they cause. However, a political campaign by the
hunting lobby has meant that from 2014, the driver has no claim against the hunter
for damage caused to him or his car by escaping game. This puts all the costs of
such events on drivers and does not incentivise hunters to take care.

2.2 ATTRIBUTION AND JOINT LIABILITY

There can be significant complexities in attributing torts to defendants, and two
particularly interesting examples relate to risk. The first is well known,
vicarious liability; the second is narrower, the liability of an importer into the
European Union of a defective product. All our legal systems recognise vicarious
liability, the paradigm case of which is the liability of the employer for the
torts of his employees. This volume has not had the space to go into the reasons
for selecting whether to frame liability primarily, by imposing obligations on the
employer directly, such as the common law�s non-delegable duties or secondarily, by
attributing it jointly with the primary tortfeasor. For many, the liability is
strict; for others, such as Italy, Spain and Chile, the liability is technically
based on a reverse burden of proof. There are many ways of conceptualising what
vicarious liability does, and two of those relate to risk. First, that the employer
benefitted from the employee�s labour, and that labour inherently risked torts and,
indeed, might have been part of the business or profit-making of the employer.
Second, that the employer created or contributed to the risk of the tort being
committed by the employee. These justifications might explain vicarious liability,
or they might merely be ex post rationalisations of it. For instance, Chilean law
seems to accept that the rule is more about encouraging safety measures by
employers and ensuring there is a financially solvent defendant. Certainly, there
are rarely clear rules on how to ascribe a particular risk to a business, making
the employer liable, rather than only to the employee, or indeed to the victim as
simply being a risk of life. In many legal systems, parents can be liable for the
torts committed by their children, but the Swedish system has recently taken that a
step further, making parents liable to some extent for the crimes committed by
their children.97 Case 3 sets up one example of a potential vicarious liability
situation. Case 3: employee truck driver C is injured by the negligent driving of
E, a garbage truck driver who had a history of losing consciousness but who did not
disclose this to his employer, D. E has no assets. This example is asking, inter
alia, a simple question about whether vicarious liability is seen as an example of
harm from a risk of employment, such that the employer should pay. That is the
default position for all our systems (e.g., Ch. 2.4.2; 7.4.1; 9.3.3.1; 10.3.1). The
position is slightly more complicated in a situation like this, which features a
road traffic event. The issue is then whether any national strict liability rules
apply to the employer, or only the driver of the vehicle. Many such systems make
the driver or keeper liable, and if the employer is the keeper, there is no need to
resort to strict liability (e.g., Ch. 4.3.1.1). In any case, there is insurance via
either route and little difference in difficulty levels in proving either claim.
French law explicitly applies vicarious liability to the road traffic liability
scheme (Ch. 3.3.1). In Italy, the employer�s liability would technically not be
strict, but would be the basis of a reverse burden of proof of fault through
presumed culpa in selection or training (Ch. 5.1); the same is true in Spain and
Chile, but the presumption would be incredibly difficult to rebut (Ch. 6.1.3.4;
8.3, text following fn. 33). In the Netherlands, the employer�s right of recourse
only applies if the employee acted with deliberate recklessness (Ch. 7.4.1). In
Chile, there is a special form of vicarious liability to make the owner or keeper
of a vehicle liable for harm caused negligently by its use that would likely deal
with this situation, or there is presumed fault for the actions of one�s employees
(Ch. 8.4, text following fn. 71 and Ch. 8.3, text following fn. 33), on which see
too South Africa (Ch. 9.3.3.2). The second form of imputation based on risk is that
of the importer of a product into the European Union. The Product Liability
Directive makes the importer liable for defects in the product which cause harm.98
This is a rule of attribution since the importer did not perform a sufficiently
relevant causal role in the harm, merely importing the product into the EU; she did
not even have to be the retailer. It seems to be justified as a means of finding a
defendant within the EU who was involved in the product reaching the claimant and
requiring that defendant to identify the actual producer. Something like a rule of
attribution can be seen in techniques which attribute the consequences of an object
or person does, rather than directly attributing the liability. Perhaps the most
famous example of this is French liability for the harm done by things in the
defendant�s control.99 It is also found in some of the older justifications for
strict liability, treating the actions of the servant as being that of the
master.100 The Dutch approach to strict liability as being based on a �quality�
discussed above in section 2.1.3.6 also comes close to being a form of attribution.
The more the �quality� is distant from the person of the defendant, the more its
function is to attribute liability to that defendant. The defendant might be closer
to events physically (such as through possession) or organisationally (such as
through control), and might be more distant when the tort is that of another
person. Vicarious liability might thus be distant from the defendant, but
possession of a dangerous substance would not be.

2.3 RISK-TAKING AS FAULT

All of our systems see a role for fault in assessing and regulating risk-taking.
For example, all our systems categorise taking inappropriate risks as at least
negligent. However, tort law contains other standards of fault, in particular
intention. It is remarkable that none of our systems consider risk relevant to
establishing liability for intentional torts. The only relevance is in respect of
the extent of the harm the defendant will be liable for (for instance, all, not
just that which is reasonably foreseeable).101 It seems that risk-reasoning is
simply irrelevant where a defendant sought to cause harm, or perhaps, in certain
tort actions, merely sought the conduct which resulted in that harm.102 The risk of
the harm could have been remote, but intending to bring it about would be
sufficient for liability. Intentional conduct by the claimant might be relevant to
a defence103 of contributory negligence or consent, or even trigger one of the rare
grounds for reducing a strict liability allocation of risks like traffic accident
statutes.104

2.3.1 Fault through taking risks

Whether the defendant showed less care than the care a reasonable person would have
shown is the traditional test for negligence or culpa. An interpretation of this
test which balances the likelihood and severity of any harm against the burden of
precautions has been a classic starting point for centuries. Today, perhaps the
most famous expression of risk-taking as fault is the Learned Hand Formula: that
failure to take a precaution is negligent if the burden of taking the precaution is
less than the expected benefits (in terms of expected harm avoided) of so doing.105
It was originally expressed as a simple formula for reasonable conduct: B (Burden
of Precautions) < P (Probability of Loss) x L (Size of Loss) Perhaps surprisingly,
for a formula that is so well known, it appears to be used more in pedagogy than it
is in courtrooms. Part of this is that national systems have internalised it,
incorporating the case into a national source. An example of this is the Kelderluik
formula in the Netherlands, though the Dutch authors describe this test as
�inspired� by Learned Hand, not directly incorporating it; it also refers to the
nature of the legal relationship between the parties. Similarly, South African law
recognises part of the inspiration for its Kruger v. Coetzee test, but notes that
the roots go back to well before Learned Hand set out his formula. This South
African discussion is particularly rich and rewarding. Spanish law refers to the
Learned Hand Formula, though its historic pro-victim/claimant attitude suggests a
particular weighting to the formula. Only Swedish law expressly applies the Learned
Hand Formula, though adding that the defendant must have been able to perceive the
value of P and L. In addition, even in Sweden, this formula is actually the second
test to be applied, known as a �free culpa examination�; the first is to ask if any
established rule of behaviour had been broken (the �valuation of norms� approach).
However, as Learned Hand himself later said, the formula may be too simplistic a
reduction of the real world to simple units and mathematical calculations. There
are nuances of the social benefits of the activity generating the risk, and
questions about whether this produces a rational, rather than a reasonable,
response. The presence of a further factor to be combined with the burden of
precautions, that is, the benefit of the risk-taking, features in many legal
systems, and this tends to be more qualitative. Indeed, there may be a sense that
�reasonable� in �reasonable person� captures something more than rationality �
albeit something uncertain and perhaps unhelpful, as Hurd and Moore have noted: �A
[possible] explanation for the reasonable person test of negligence is that it
allows for true divergence from the demands of the calculus of risk. On this view,
the calculus of risk is too utilitarian (or at least too consequentialist) to be of
universal application. On a deontological view of morality, our moral duties and
permissions are not measured exclusively by whether they produce cost-justified
risks � the reasonable person may be the (deontologically) moral person, not the
one who correctly sums the consequentialist balance of benefits versus risks. In
addition to a standard test for fault, our systems recognise some special rules for
assisting with proof of fault. In some systems, these special rules take the form
of presumptions of fault, something noted already in respect of Chile (section
2.3.1 above) and present elsewhere as well. Spanish law at one point took
presumptions a step further, and generalised a presumption of fault across much of
tort law during the second half of the twentieth century. The fact of harm was
enough to place on the person who caused that damage an obligation to prove it was
not done through fault. This was the �theory of risk� (teor�a del riesgo) and
ultimately led to a period of �as-if strict liability� or �quasi-strict liability�
(responsabilidad cuasiobjetiva). As Spanish law has moved away from that general
reversal of the burden of proof, it is an interesting question whether there has
been a drive to demarcate strict and faultbased liability more. One enduring
presumption which is quite widespread is in vicarious liability: a presumption that
the employer failed to take care in the selection or training of employees. This is
discussed in section 2.2 above, particularly in respect of Case 3: employee truck
driver. Another set of special rules are not presumptions of fault, but inferences
of proof of negligence, typically based on the fact of the damage itself. This is
known in England as res ipsa loquitur and in Spain, for example, as da�o
desproporcionado. The inference of fault supplements other means of proving fault,
and comes close to a presumption in effect. It is technically not the same as such
a presumption of fault, since it can be defeated not only by proving a lack of
fault. Typically, res ipsa loquitur can also be defeated, and thus no inference of
negligence is raised to begin with, by proving matters like the situation was not
under the control of the defendant, or the situation might well lead to harm even
without fault being present.
2.3.2 Risk-taking and strict liability
All of our systems turn to strict liability to deal with for risk-taking. As noted
at the start of this chapter, the levels of strict liability can be seen on a
spectrum. Most systems do not seem to have intricate and well-accepted
justifications for their use of strict liability. Spain may be an exception, where
it appears strict liability is primarily explained by reference to risk, and that
language is clearly represented in some of its strict liability actions, like road
traffic. Looking across our systems, there appear to be two categories of
justifications for strict liablity:

1. Strict liability justified through instrumental (regulatory) aims:

a. Promote safety incentivisation: whoever is liable if the harm comes about might
be incentivised to prevent the harm in order to avoid paying. b. Cheapest cost
avoider incentivisation: whoever is liable might be incentivised to prevent the
harm; if the person who could most cheaply avoid the harm happening is liable, the
least money is spent overall. c. Strict liability justified through regulatory
efficiency: fault is more expensive and difficult to establish, so the system would
be more efficient dispensing with it. In its most extreme form one can find the
�Swedish model�, where the state organises first-party insurance to provide
compensation for most of the personal injury a person might suffer, avoiding
litigation. d. All three of the preceding reasons are typically buttressed by a
further reason, loss absorption and loss spreading (with the apt �pulverisation� as
the technical term in Sweden). This reason could also stand on its own. It suggests
that a person could be made liable where that person could either anticipate the
costs ex ante and divert them, or absorb them ex post, and in both cases then
spread that cost to others through insurance or the price of goods or services
provided. In some cases, an argument can be made that a specific person might more
easily or cheaply be able to obtain insurance cover. Some systems go further and
provide that every instance of statutory strict liability is coupled with a
provision requiring insurance or similar financial guarantees.

2. Strict liability justified by non-instrumental aims:

a. Strict liability justified through the unlawfulness of risk-taking: i. There
were more than de minimis risks inherent to an activity or the way it was carried
out; ii. The benefit and burden of those risks were unevenly shared, or otherwise
that the allocation of the risks is not �fair�; and iii. The defendant had control
over whether to carry out the activity or do so in the way he did. b. Strict
liability justified through the wrongfulness of the risk-taking: the defendant
interfered with a right the claimant had by taking a risk. It might be that a
�theory of guarantee�, to guarantee your fellow human beings a certain level of
safety, is a form of rights-based reasoning, or at least akin to it. c. Further
philosophical reasons for strict liability might also be seen underlying some of
our systems. These are discussed further in section 3.1 below. There are hints that
all four play a role in our legal systems. They are strict liability as: a way to
secure the fair distribution of risks; a form of validation of agency; a form of
allocation or liability for risks being akin to a tax; and a balance of efficiency
against rule of law concerns about how much the liability could ever be avoided
(see section 3.1 below). There are other examples of legal systems moving towards
strict liability without formally doing so. Case 4: brakeless lorry, discussed
below, might be a case met with a stricter fault standard. Perhaps the most
compelling example is Spanish tort law.126 While officially not accepting extending
strict liability by analogy, Spanish lawyers have been willing to impose a high
standard of fault within the test of the buen padre de familia and to reverse the
burden of proof of fault, as well as having a general pro-victim mentality. Note
that these three characteristics all stack together, making responsabilidad
cuasiobjetiva, or quasi-strict liability, a key characteristic of late twentieth
century Spanish tort law. From the twenty-first century, there has been a counter-
movement led, or best exemplified, interestingly, by civil procedure. Our Dutch
authors also warn that a toughening of fault standards can easily happen if
decision-makers fail to reduce hindsight bias. Finally, there are examples going in
the other direction: of strict liability where in practice the courts require
fault. This can be seen in the Spanish liability for the abnormal or normal
functioning of the public services. Case 4: brakeless lorry C is injured by a lorry
because the lorry�s brakes lose pressure because of corrosion in the brake cable.
The cable is not able to be visibly inspected without taking the entire chassis
apart; regular and normal maintenance has been performed on the lorry by the owner,
D. Would it make a difference if the vehicle were a boat on water, not a lorry on a
road? This example is asking how negligence is tested for and whether it can
sometimes be a stricter test of fault. The example covers both road-specific
regimes and others. For the systems without strict liability for road traffic
accidents, fault is key. In particular, it is difficult to see this as a case where
fault in the form of negligence is present. In England, on facts similar to these,
the law was contorted to find fault. In particular, the House of Lords came close
to adopting a very high standard of fault and a reverse burden of proof of fault
(Ch. 2.3). Chile�s special statute for road traffic creates �statutory negligence�
for operating a vehicle with brakes in this condition; this is a presumption of
fault, rather than strict liability (Ch. 8.4, text around fn. 66). For the systems
with strict liability for road traffic accidents, that normally entails strict
liability for the driver, unless the accident was between two drivers, when
negligence determines the liability. In some cases, like Sweden, the liability is
not actually based on the rules of tort law at all, but through a claim against an
insurance scheme (e.g., in Sweden, Ch. 4.3.2.2; Brazil, Ch. 10.3.5). For traffic
liability schemes, a precondition to recovery is that the accident happened in the
context of �the circulation of vehicles� in France (Ch. 3.3.1), �occasion of
circulation� in Spain (Ch. 6.3.1.3; where, outside that regime, professionals like
drivers or mechanics would owe a higher standard of care), or �on the road�, as in
Italy (Ch. 5.5). For example, in the Netherlands, if C were a pedestrian or
cyclist, then article 185 of the Wegenverkeerswet 1994 imposes strict liability on
owner or keeper. If C were a passenger or another driver, article 6: of the Civil
Code applies a rule of fault against the driver. However, the person who was
supposed to maintain the vehicle might be liable for fault, just as the owner might
be, on the basis that he should have taken more safety measures than normal. The
road traffic regime is subject to a narrow form of force majeure and the
contributory fault of the claimant (see Ch. 7.1). Outside those schemes, the
liability of the person responsible for the condition of the vehicle might be based
on fault even if the liability of the person who has control over the vehicle is
decided by a strict liability regime (Ch. 3.3.1). Such schemes may also have
limits. In respect of the boat alternative, none of our systems have a strict
liability regime, though of course, there is significant insurance cover in play
too (e.g., Ch. 5.5; 6.3.2.3; 8.3, text preceding fn. 23.).

2.4 RISK AND CAUSATION

The concept of causation has clearly been affected by risk-reasoning. For tort
actions which do not require proof of harm, the defendant�s actions must have
caused the interference with an underlying right. For tort actions where damage is
the gist of the action, the defendant must have caused that damage. Both forms of
causation tend to be divided into questions of factual evidence and the extent of a
causal chain for which that the defendant should properly be held liable. Both
forms involve complex issues of risk and proof.

2.4.1 Factual Causation

The trite first step for causation is that the defendant�s actions were a but-for
cause of the claimant�s damage. Beyond this, there are commonly other
considerations to this first step, some of which are directly related to risk
doctrines. In particular, the defendant�s tort must have increased the risk of the
occurrence of this kind of injury: �So if D negligently speeds along a motorway
and, as a result, C, D�s passenger, is struck by lightning, C cannot recover
damages in respect of the loss due to the lightning strike (even if the weather
forecast was that lightning was likely).� If there is but-for causation, the
defendant is liable for all the loss within the scope of his responsibility (that
is, which is not too remote) unless some form of proportionate liability is
imposed. Our systems also have exceptional doctrines for dealing with where it
cannot be shown that but for the defendant�s conduct, the claimant would not have
suffered the damage she suffered. These might be divided into two exceptional
doctrines: of substance and of evidence. Functionally they might do similar work,
but the choice between them might signal other things about the legal system too,
such as the role of trial court discretion on facts as opposed to law, or whether a
reverse burden of proof of a currently unprovable fact is thought intelligible. One
such example is discussed below, in Case 5: single exposure but multiple
tortfeasors. Evidential doctrines hold that proving �X� is sufficient to provide a
cause of action even though it does not prove �Y�, what is normally required. This
is a more direct test of substantiation, admitting that the claimant has not done
what is normally required to prove the case but not redefining the case to be
something less, such as loss of a chance (on which, see section 2.5 below). It is
also rare. In England, the famous case of Fairchild in 2002 is the most recent and
significant example. C could not show which of two Ds had caused the harm, but each
had exposed C to asbestos in breach of a duty to take reasonable care of C. The
case triggered a wave of contests about the scope of this substantive rule, but it
has so far been very narrowly interpreted. South Africa seems to be at the start of
a wave which might prove more destabilising than Fairchild, powered by
constitutional jurisprudence rather than a sense of fairness in the face of
scientific uncertainty and multiple defendants. These developments began with Lee
v. Minister for Correctional Services in 2013, where the Constitutional Court
allowed a claim in effect for negligently exposing another to a risk of harm, where
that harm eventuates; the claim was not for causing that harm, as that could not be
proven. The facts concerned contracting pulmonary tuberculosis in a public prison
while on remand before trial. The court�s reasoning was expressly based on risk. As
Alistair Price explains, the function of the rule is unclear. �First, it may
involve a questionable inference to actual causation from a mere increase in risk.
Second, it may involve the application of an exceptional evidential rule where
proof of an increased risk is accepted as a substitute for proof of causation.
Unless carefully circumscribed, such an exception has the potential to obliterate
the ordinary evidentiary rule of but-for causation. Or third, it may involve the
recognition of a novel kind of actionable harm or damage in delict � merely coming
under a risk of other actionable injury. This would entail the development of a new
form of risk-based wrongdoing in the South African law of delict, grounding
liability for culpably generating or increasing a risk which eventuates � the
judgment has the potential to justify full, rather than merely proportionate,
liability in negligence for a lost chance of a better outcome outside the context
of purely financial loss, for example in cases of a lost chance of a medical cure.�
Our systems also contain exceptional evidential rules to prove factual causation.
They range from the formal and explicit to the informal and tacit. English tort law
typically does not use presumptions or reverse burdens, yet it does seem to have
outcomes where less evidence than normal appears to be sufficient. French law has a
number of formal presumptions of causation. For example: �To establish whether
�strong, precise and concurring� evidence enabling a presumption of the causal link
does in fact exist various factors will come into play: the fact that the
scientific link is already acknowledged between the taking of the medicine and the
risk of developing a pathology, the proximity in time between the taking of the
medicine and the onset of the pathology, or the absence of any other explanation of
causation.� Similar presumptions have been developing in Spain, without much
legislative basis (aside from the Hunting Act), where scholars are particularly
aware of what other European legal systems do in such situations. The Dutch
starting point is to require a �reasonable degree of certainty� that D caused C�s
harm, but this also has exceptions, most particularly article 6:99 of the Civil
Code, which presumes all those liable were causes of the harm. Again, it was in a
cancer case (DES) that we can most clearly see this rule operating most
expansively: the claimants no longer had to prove which manufacturer had supplied
the drug that injured them � they could claim in full from any one manufacturer who
might have done. Chilean law also adopts a similar willingness to bend formal logic
and fairness in order to benefit victims. Swedish law appears to go further, and
expressly lowers the standard of proof in personal injury and environmental harm
cases. As our Swedish authors explain: �The argument in the first situation is
mainly the social importance of this type of damage, and in the second situation it
mainly has to do with the general difficulties in establishing causation in tasks
of environmental harm.� Brazil does something similar with respect to consumer
transactions. What seems to motivate these exceptional doctrines of factual
causation is that there are situations where it works injustice simply to insist
that a claimant prove all aspects of her case. There is also a sense that in many
of these situations, health (personal, or more generally environmental) is an
important value and risks to it must be more generously examined. All this happens
primarily at the level of the trial court, with appellate judges reluctant to
intervene, and thus appeals do not create detailed legal rules. Case 5: single
exposure but multiple tortfeasors C contracts disease X, which can be caused by a
single exposure to chemical Y; three defendants have each tortiously exposed C to
chemical Y but it cannot be shown which defendant�s exposure caused C to contract
disease X. This example is asking, inter alia, about the way risk might affect
causation. The difficulty is in showing which of three defendants caused the harm
that we know C developed, namely disease X. In some of our systems, special rules
were developed to substantively solve the problem, deeming causation to be
satisfied and making all defendants jointly liable. This is the case in England
(Ch. 2.5.2) and there is the possibility to do so under new jurisprudence in South
Africa (Ch. 9.2.1.5). The effect is the same in the Netherlands, though whether it
is a substantive rule or a rule of evidence is unclear (Ch. 7.7). In France, it
appears likely that there would be a presumption of causation making all defendants
jointly liable (Ch. 3.4). It seems likely that Spanish law would do the same,
following judicial decisions, since the sole legislative rule on this only applies
to hunters (Ch. 6.3.2.2). In other systems, the answer is not entirely clear,
perhaps because difficult questions like this are hidden behind rules to assess
evidence, whether by lowering the standard of proof as in Sweden (Ch. 4.2.3.1),
reversing it, or introducing presumptions (or �fictions� as Chile frankly admits:
Ch. 8.5). In Italy and Chile, no such case has arisen; in Italy, this is perhaps
because employees tended to work for the same employer throughout their time in
that industry; it is not clear what Italian courts would do in this situation (Ch.
5.7), something that might apply to Chile as well. All defendants would be strictly
liable in Brazil (Ch. 10.4).

2.4.2 Scope of causal responsibility

All our legal systems have rules about the extent of the consequences of a tort
which must be compensated. There are many names for these rules, such as remoteness
of damage or legal causation, but �scope of responsibility� is the term used here.
First, it is very common to have a basic rule for limiting how far liability
extends, either by what was reasonably foreseeable, such as in the common law, or
within the scope of the protection of the rule, as adopted for instance in Spain
and Chile, originally from German law. Second, there are typically further
specialist rules related to the extent of consequences for which the defendant is
liable. Many legal systems have a �take the victim as you find him� rule, where the
fact of damage or the extent of it was partly caused by the personal
characteristics of the victim. Put another way, the defendant takes the risk when
acting unlawfully that the victim will suffer harm, or greater harm. Some of this
is factored into the actuarial tables and procedural rules on re-opening awards. In
England, the first tortfeasor must continue to pay damages even when a later
tortfeasor would have caused the same harm, but does not have to do so where the
harm would have been caused by a latent disease. The disease is called a
�vicissitude of life�, a risk to be borne by the claimant, whereas the second
tortfeasor is not. This approach has been expressly mentioned by some of our other
systems.

2.5 HARM, DAMAGE AND LOSS

The fifth place where risk-reasoning could change how components of tort law work
is in reconceptualising what has been harmed, damaged or lost. These three terms
are broadly recognised in our systems, though they are often used imprecisely.
�Harm� is the most generic, indicating any detriment to the victim of a tort.
�Damage� should be used to refer to interference with a protected interest, such as
the right to personal integrity or to one�s property. �Loss� is an abstract concept
of being worse off. Each of them has to be quantifiable in order to be remedied.151
There are three common examples of how risk-reasoning can affect these notions of
harm, damage and loss: loss of a chance, endangerment and recognising harm to an
ephemeral interest like �moral rights�.

2.5.1 Loss of a chance

The majority of our systems now allow claims for lost chances, as discussed below
in respect of Case 7: loss of a 17% chance. In effect, this is giving effect for
risk-reasoning not through causation, but through the type of harm. Legal systems
which admit this kind of claim reconceptualise what has been suffered: it is now
not a full harm, but, in reverse, losing the chance of avoiding that full harm is a
harm itself.152 Case 7: loss of a 17% chance C develops cancer and the symptoms
lead him to attend hospital where the medical staff fail to diagnose the cancer.
The misdiagnosis means that C no longer has a 42% chance of surviving ten years,
but only a 25% chance. This example is asking, inter alia, about the loss of a
chance as a claim in itself. A minority of our legal systems do not regard the loss
of a chance (the parallel of an increase in the risk) as an actionable harm in
itself. This is the position in England at least as regards personal injury (Ch.
2.6) and Sweden (Ch. 4.2.3.2). The majority of our systems allow a claim for a lost
chance, such as lost years or life or probability to recover: e.g., France (Ch.
3.4), Italy (Ch. 5.6), the Netherlands (Ch. 7.7), and recently Brazil (Ch. 10.2.2,
text to fn. 18). In all cases, 17% of the total loss will be awarded if the claim
is successful. New jurisprudence in South Africa might potentially allow the claim
(Ch. 9.1.2.5) and might even do so in a way that allows recovery for the full loss,
not just 17% of it (Ch. 18.5, text to fn. 85).

2.5.2 Liability for endangerment

Our systems do not recognise that D endangering C is itself an actionable tort.
Criminal law across our systems very commonly does prohibit endangerment, but tort
liability requires some kind of actionable harm not just endangerment. France does
come close to creating liability on terms which come close to liability for risk-
creation. Some French commentators would prefer to do that, making the defendant
fully liable for all the loss on the basis of creating a risk when the defendant
then suffers the harm. This kind of liability might in practice be being created
through reverse burdens of proof of causation already, without being expressly
recognised as a new doctrine. The French do not seem to regard this possibility as
being as potentially destabilising as the Fairchild line of cases in England, or
the possible developments in Lee in South Africa, have been thought to be
destabilising in their home legal systems (see section 2.4.1 above). We can see the
cutting edge of what counts as actionable harm in Case 6: first exposure chemical
below, actual physical change is caused, but a change which will not necessarily
cause loss. Case 6: first exposure chemical C�s employer tortiously exposes C to a
chemical which on first exposure causes no harm, but which, if a second exposure
occurs, will cause serious injury. The chemical is only used in this one type of
industrial process. This example is asking, inter alia, about whether the risk of
harm can ever be harm in itself: can it be re-characterised as an existing harm,
like the economic loss of not being able to work in a particular field lest further
exposures occur, or the psychiatric harm of fearing future exposure? The common
position seems to be that this kind of injury is not recoverable in our legal
systems (Ch. 2.6; 3.3.7; 4.2.1.2; 5.6; 6.3.2.1; 8.5). In some ways, that is
remarkable. The physiological changes to the claimant mean he has lost his immunity
to his first exposure to the chemical. At the same time, those physical changes are
not regarded as harm in themselves. If they were, once even a very minor form of
recognised harm had been suffered, the retraining cost and potential lost earnings
of having to avoid that chemical would be likely be recoverable. French law is
unusual in clearly permitting a claim, though only if the harm were rephrased as an
anxiety about the risk of future illness (Ch. 3.3.7). Dutch law might allow such a
claim; the position is not yet clear (Ch. 7.5.8.1). Brazilian law would also
probably allow a claim, but a trial court would have to find some way to put a
figure on the loss (Ch. 10.3.5).

2.5.3 Ephemeral harms

A final form of harm which is loosely connected to risk-reasoning is non-physical
harm, most commonly called �moral� harm, to be compensated by �moral damages�. This
might include psychological harm less than a recognised psychological condition, or
even some kind of vindication of personality rights infringed by the defendant. The
clearest example of such damages being related to risk comes from Brazil. Brazil
has recognised the category of moral damages in the 1988 Constitution, a form also
recognised in the current Civil Code of 2002.154 They are used, our Brazilian
authors explain, to remedy �injury to the victim�s honour or privacy, causing a
deep psychological shock, caused by activities that involve risk�. Our French
authors also hint at the potential role for moral harm being recognised,
potentially even covering �being deprived of an opportunity to prepare
psychologically for physical harm�, which sounds like a harm based on the loss of
an opportunity to perceive and consider risk. This might simply be a reference to
the interest in patient autonomy, but it is hard to quantify damages for such an
infringement. It might also be that some countries use a wide definition of pain
and suffering as a head of loss, in order to accommodate the same kind of
flexibility and recognition of personal interests. French law also seems to
recognise a wide form of harm in �anxiety�. English law would not allow such a
claim, and unless a defendant had specifically assumed a responsibility for the
claimant�s peace of mind, anxiety about risk would not count as damage.

2.6 DEFENCES
The main two defences in relation to risk are consent and contributory negligence.
Both relate to the claimant�s risk-taking. All our systems recognise the role of
consent in denying liability, though there is some variation over how consent
operates to defeat liability, including who must plead its presence or absence. The
Dutch system accepts consent but does not accept assumption of risk, at least
formally, reasoning that the work is instead already being done by other legal
concepts like the duty to follow commonly accepted standards. The Chilean system
similarly finds the language of �assumption of risk� slightly unhelpful, preferring
to require that the claimant�s will was directed to that risk with sufficient
information about it. Consent has been particularly important in medical contexts.
Our systems impose limits on what can be consented to. In Chile, a person cannot
legally accept a high risk of harm. In England, you cannot consent in road traffic
accidents nor through exclusion clauses and notices. French law has barred consent
more widely. The defence of consent cannot apply to a personal injury claim nor can
the defence of acceptance of risk apply cases of liability for things which cause
personal injury, including in sporting activities. In Sweden, a claimant can only
accept a risk which ultimately causes no more personal injury than a regular
assault or battery.166 Case 1: 2% risk information C becomes paralysed after (non-
negligent) surgery on her back. The risk of paralysis was a 2% risk even for
surgery which was performed perfectly but the doctor, D, did not warn of that risk.
Would it make a difference if the claimant says she would have had the surgery even
if warned? This is the first of two cases assessing the role of consent in relation
to risk. It focuses on the role of obtaining consent and the possible complications
of counterfactual analysis of what would have happened had consent been sought. In
essence, it starts by asking whose role it is to obtain consent. The second
example, case 8, deals with the level of understanding and volition that results in
valid consent when used clearly in the category of a defence. All of our systems
would impose liability on the doctor: it is his duty to obtain consent for the
actions involved in the surgery (e.g., Ch. 10.2.1). Interestingly, some systems
explicitly prefer to deal with this as a matter of negligence, rather than a tort
action which represents interference with bodily integrity (e.g., Ch. 2.2.2;
9.2.2). The difficulties for a rule about consent revolve around what risks are
significant enough to require the doctor to obtain consent, ranging from �all
foreseeable risks of serious harm, no matter how remote those risks are� (Ch.
12.1.1.4) to �material risks� (Ch. 2.2.2) or relevant risks such as a 20% risk, but
not where the doctors would have been justified in running that risk if it arose
without notice (Ch. 4.2.4.2). A practical problem is what true consent means from a
patient who is fearful, anxious and/or feeling reliant on medical professionals to
make such decisions. As for the alternative if warned, normally the claimant cannot
recover where she would have had the operation even if told of the risk (Ch. 2.2.2;
12.1.1.4; 6.2; 7.6.1; 9.2.2). However, some legal systems value consent so strongly
that they would make the defendant liable even if the claimant would have had the
operation anyway (e.g., Ch. 5.5.). French law appears to be in the middle, and if
it is not clear the claimant really would have gone ahead anyway, she will be
awarded compensation for the lost chance of avoiding the risk (Ch. 3.3.4). Case 8:
�Crazy Garden Elixir� C is made ill when he drinks a cocktail D provided made in
part from plants in D�s garden. C saw what was going into the cocktail and D asked
C if he wanted to try the �Crazy Garden Elixir� and C agreed. C has no special
knowledge of plants and knows that D is only an amateur gardener. This is the
second of our consent examples and is asking, inter alia, about the role of consent
as a way of resolving risks where the precise level of the risk is known by neither
party (cf. case 1 above where the risk was known to the person performing a
surgical operation). Our systems would all allow consent, or acceptance of risk, in
principle (e.g., Ch. 2.7.2; 5.5; 6.3.3.3; 7.5.6; 8.7; 9.2.2), but there would be
conditions. Neither C nor D knows much about the substance, other than it being
made from garden plants, but normally C�s autonomy would allow him to accept the
risk of injury. The Dutch point out that if the risks of doing things like this
were commonly known, D need not have warned C of them (Ch. 7.5.6). For the Swedish,
the rules on acceptance of risk are more directly tied to the criminal law�s
understanding, with the result that any harm that resulted could not be more than
the level of a regular assault or the defence would not apply (Ch. 4.2.4.2). By
comparison, English law clearly adopts a wider rule for consent in tort than in
criminal law (Ch. 2.7.2). Many other systems simply ask whether there was factual
consent even to unknown levels of risk. France and Brazil are outliers. In France,
consent is not a defence since the human body is inviolable, and it seems that
while C did accept the risk in fact, that defence is not available where the harm
was caused by a �thing�. Thus, the fact of accepting the risk would have to be, and
probably would be, shoehorned into shifting some of the loss to C in a manner
similar to contributory negligence (Ch. 3.3.3). In Brazil, D is strictly liable but
C�s contribution to the harm would reduce his claim (Ch. 10.3.1). Almost all of our
systems in principle allow the defence of contributory negligence to most or all
tort actions. However, some systems restrict the defence. In Sweden, for personal
injury claims, only intentionally harmful or grossly negligent conduct by the
claimant will engage the defence, perhaps as part of the wider Swedish
socialisation of risks. Contributory negligence in some ways mirrors the
defendant�s fault, and thus is particularly complex in strict liability schemes.
Where strict liability is to streamline disputes, and/or spread losses,
contributory fault might be a distraction. The third defence involving risk-taking
is the �development risks� defence under the Product Liability Directive. Article
7(e) of the Directive provides a defence where a producer can prove �that the state
of scientific and technical knowledge at the time when he put the product into
circulation was not such as to enable the existence of the defect to be
discovered�. This provision was implemented into national law in a variety of ways,
some more generous than others. The defence might be interpreted as far as making
the liability under the Directive no longer strict, but in effect, a reverse burden
of proof of fault: the producer being presumed to be at fault unless she can show
that she was not able to discover the defect at the time. In rare situations, a
specific development risks defence is recognised in other strict liabilities
outside product liability. This is the case in Spain for the liability of public
authorities, for example. In that situation, many other countries would not be
making the state strictly liable to begin with, so there might be less pressure for
a defence of development risks. But the legal system which applies this defence
systematically is the Netherlands, despite the fact that it is only in product
liability that the defence is expressly provided for. Perhaps generalisation is in
fact the answer and a principled position on a defence to strict liability is
thought to be necessary across the board, rather than only in respect of products.
Finally, it could be argued that risk underlies other concepts and defences, such
as force majeure. The implication is that certain risks are not those that an
otherwise obligated party should have to sustain.

2.7 REMEDIES
The remedies tort law uses are relatively narrow. Damages are the standard and most
important remedy, with injunctions coming in a distant second. Case 9: lung
injunction C lives near to a building development and develops bronchitis without a
prior history of ever having difficulty breathing. The building development is
about to proceed to the next and much more active phase, which will make the
bronchitis worse. This example is asking, inter alia, about the ability of
claimants to intervene before harm is suffered by means of injunction, interdict or
otherwise. Our systems typically permit this (Ch. 2.2.1.2; 3.3.6; 5.7; 6.3.2.1;
7.3.3; 8.8; 9.2.1). Injunctions are more easily available in some fields rather
than others as well, such as in environmental law, constitutionally protected
interests or for personal injury. Injunctions which are tailored to reduce the risk
in the least obstructive way possible are also more likely to succeed (e.g., Ch.
7.3.3). That said, in practice, such injunctions seem relatively rare in the
majority of tort cases, since the parties are strangers, the harm is not
predictable or damages would be an adequate remedy. Only one country, Sweden, does
not seem to have the possibility of such injunctions in private law, and they
instead rely on public law mechanisms to deal with such risks (Ch. 4.4.1). Even the
Swedish find the lack of other remedies somewhat surprising. Most interestingly,
Chile reminds us that any remedy is only as good as the procedures which can grant
it.173 Civil procedure in Chile is so slow that even abbreviated �summary�
procedures are not fast enough to make them viable for most tort claims. However,
the result is that the system focuses on the protection of certain constitutional
interests through its recurso de protecci�n. This public law injunction addresses
risks of breaches of human rights.

2.8 INTERNAL COMPARISONS

Legal actors within our systems are sometimes aware of instances where one part of
their system conceives of, generates liability from, or attempts to regulate risk,
differently from another part of the system. Similarly interesting, though less
easily noticed, are where two areas of the system employ the same risk-reasoning,
since uniformity of reasoning should not be taken for granted.

2.8.1 Contract Law

A number of examples of contractual doctrines have been noted, and the law of
insurance is a particular nexus for that discussion (section 4.3 below). Contract
law represents an opportunity to bargain for risks and rewards, subject to
overriding determinations of appropriate deals and terms. The nature of risk in
transactions, typically fuelled by contracts, is the core of Chapter 11, as is the
modern regulation of food safety through supply chains in Chapter 14. Regrettably,
this volume could not explore the nature of risk in contract compared to tort, and
it remains a key area for future research.

2.8.2 Criminal Law

Criminal law poses obvious comparisons for tort law, as it often runs parallel in
terms both of the unlawful conduct to be prohibited and the limits of how
regulation might work in practice. Sometimes the parallels are not just there to
remark upon and consider when deciding tort cases. In some of our systems, a
paucity of tort law rules means that criminal law rules are adopted into private
law. Thus, in Sweden, the rules on consent are understood in criminal law terms,175
and in Italy some of the criminal law rules on causation in fact in medical cases
are followed, though tacitly some of them are also rejected. In other situations,
criminal law rules are not filling a gap, but are simply thought better. This
happened in Spain on the scope of liability in tort, where objective imputation was
imported into Spanish criminal law first, whence it was adopted into tort law.The
level of overt risk-reasoning within a legal system might vary. For example,
Spanish criminal law displays significant criminal liability for endangerment. This
stands in direct contrast to Spanish tort law, where risk alone is not a recognised
harm � damage is axiomatically the core of tort. Finally, there are sometimes some
very direct cross-overs between tort and crime, such as where a claim for
compensation is brought within a criminal prosecution. In such instances the
criminal court will often be applying civil law rules, but triggered by a criminal
offence. Another possible overlap is where a civil claim for loss can be based on a
criminal offence, such as the English tort of breach of statutory duty, but each
legal system imposes different conditions on such a claim and this is not the place
to go into those conditions.

2.8.3 Constitutional Law

Constitutional dimensions to risk can have powerful effects on tort law doctrines.
Two notable examples come from South Africa and Brazil. The whole of Chapter 18
discusses the role of constitutionalising risks, but one instance might suffice as
an example. The South African Supreme Court of Appeal in Trustees, Children�s
Resources Centre Trust v. Pioneer Foods (Pty) Ltd essentially extended to all
delictual litigation the ability to institute a class action. The case concerned a
delictual claim for financial losses suffered by consumers as a result of illegal
price-fixing by bread producers. Part of the reasoning was that the Constitution
already permitted class actions where constitutional rights were infringed or
threatened and there was no reason not to do so elsewhere.181 As Alistair Price
explains, not all references to rights and values beyond private law can be
dismissed as subterfuge for judges simply wishing to change the law. �First, �the
value of fundamental rights to private law reasoning is rooted in concerns about
the legitimacy of the judicial development of the law� � Second, it is not unusual
for fundamental rights to justify �risk-avoiding obligations� in addition to, and
as opposed to, �injury-avoiding obligations� � Thirdly and finally, a key rationale
for the indirect application of fundamental rights to private-law relations is the
need to guard against private law being reduced to an instrument of domination,
where the equal freedom fostered by private law�s system of rights and duties is
abused.� Similarly powerful effects can be felt from the public nature of some
risks, even if it would not qualify as being of constitutional importance. We have
seen French administrative courts sow the seeds of French medical liability in
tort. We have also seen the reverse, with the rules of extracontractual liability
in Chile regulating and even redressing public concerns like environmental harm. A
similar use of public law concepts, or even public law remedies, can be seen in
Chile. The most effective injunction relief available is of a constitutional kind,
the recurso de protecci�n, where a human right is threatened, disturbed or
encroached. These injunctions have been particularly effective in protecting both
human health and the natural environment. One fascinating comparison drawn from the
public character of certain risks is made by our French authors: �The principle of
�galit� devant les charges publiques is omnipresent: compensation is accorded to
those who have shouldered a disproportionately large burden or loss caused by
activities pursued in the common good � State liability based upon the realisation
of a risk corresponds to the idea that certain risks (particularly those with the
potential of causing mass harm) must be supported by the collectivity as they are
pursued in the general public interest. Interestingly, this argument is turned on
its head in certain English cases, where the fact that certain risks arise from
activities undertaken for the benefit of the community is the very reason why it is
considered that compensation should not be granted: the concept of community
benefit thus results in an exculpation of public authorities.� There is thus an
important question of how the collectivity should bear a loss. It might bear it as
a group, through state liability spreading the loss via taxation (France), or as an
individual who happens to be injured (England). In Brazil, two directions of
influence can be seen. On the one hand, private law has been the origin for public
law doctrines and techniques to deal with risk in respect of the state�s liability.
The relevant rules of the Constitution do not expressly refer to risk, but it is
doctrines of risk which are acknowledged to underpin the strict liability of the
Brazilian state. This is buttressed by a clearly instrumental reason: the state
seems to violate citizens� rights too frequently and strict liability aids
effective redress. On the other hand, in recent years, previously stable rules of
private law on employer�s liability have been extended under the influence of
constitutional law. There is a final interesting comparison with public law, and
that is the role of public law in shaping the space for private law to work. One
example is where public law seems to preserve or enhance the functions of private
law regulation. This has been seen more or less explicitly in Italy, in the
regulation of the foodstuffs market, where public law rules are designed to allow
private law regulation to work. In Chile, an inverted approach is leading to the
same result in environmental cases. Piecemeal public law regulations appear as if
they should be applied, but courts turn instead to the Civil Code, reflecting a
view that that Code was in fact the foundation and benchmark of regulation that
provides a more comprehensive way to find answers. There are also instances where
public regulation appears to be silent entirely, leaving private parties to promote
the role of private law disputes in ordinary courts.

3. THEORIES, CONCEPTS AND ARGUMENTATION ABOUT RISK

Risk-reasoning plays out across all areas of tort law, but exactly what it is doing
is open to some debate. It is more or less overt in different systems and in
different areas of the law; when overt, it is still not clear how normatively
powerful it is.

3.1 THE PLACE OF RISK-REASONING

Risk-reasoning has become more prevalent and openly accepted in around the last 150
years. That reasoning is sometimes explicit in the wording of legal rules or, more
commonly, in the legal discourse around those rules. Our authors can all
convincingly explain how risk-reasoning is being deployed in their systems, even
where the formal legal rules do not refer to risk-taking as a ground of liability.
It might be thought that where formal legal sources refer to �risk� or �danger�,
the system might engage in more overt legal reasoning. It is interesting that few
formal legislative tort rules seem to refer to risk-taking, though a number refer
to danger/dangerousness.192 Case law regularly uses risk-taking as part of finding
fault, but even then it is just one of the criteria (see section 2.3 above). In
Brazil, judges and contexts vary. For some judges, it is enough to apply laws which
loosely refer to risk or danger without referring to risk-reasoning. They simply
state that the issue is a consumer transaction, therefore applying strict
liability, even if in practice this means conceiving of the issues in terms of
risk. For others, risk-reasoning is actively engaged in as a means to add
rhetorical force to their judgments.193 French law�s attitude to liability for
medical harm is revealing. Medical accidents have a state fund for compensation
without proof of fault, where risk-reasoning is at work but often not
conceptualised or articulated. By comparison, in medical product liability,
riskreasoning is one of the key drivers of compensation.194 Perhaps the most
intriguing example of the overtness of risk is in Sweden, where the very process of
recognising law as a neutral vehicle through which society could be changed was
also the process to collectivise risk.

3.2 NORMATIVE FORCE OF RISK-REASONING

3.2.1 Why risk is relevant to tort liability

The normative force of risk-reasoning varies not only from system to system, but
also depending on the specific cause of action. The two most basic justifications
for liability for risk-taking are liability according to who created the risk and
who profits from the risk. Any onne, such as profit, might explain some instances
of risk-based liability (like strict liability for workplace accidents) but not
others (where the workplace was for a charitable organisation). In addition,
neither can be sufficient for liability, since the nature of the risk and how it
was created will be relevant as well. Control might also be relevant: it is not
just specific riskcreating or profiting from risk which generates liability, the
defendant must also have had control over the generation of the risk. It might also
be that different grades of relationship with creation and profit are possible. The
Brazilians rephrase the problem by adding further characterisations: risk/benefit,
professional risk, created risk, integral risk and exceptional risk. It may be that
these ideas are blended together, following, sometimes even explicitly, not just
the maxim ubi commode, ibi incommode/cujus commode, ejus etiam et incommode, but
also ubi emolumentum ibi onus. Our systems might even agree with the law in the
United States, where some suggest that �[d]efendants who engage in certain
activities unilaterally impose well-known, well-defined, and substantial risks upon
others in a course of conduct that (typically) is consciously undertaken for their
own benefit.� One principle that does not seem to have the force in tort law that
it does in public law is the precautionary principle. The principle is often taken
to mean that, if an action has a suspected risk of causing harm, the burden of
proof that it is not harmful should be borne by those taking that action. Some of
our authors do not think the principle worth discussing at all or in any detail,
such as the English or South African. Even in France, where tort liability itself
is extensive, there is little recourse to the precautionary principle since it is
limited to public authorities.203 Indeed, there has been push back against the
principle, suggesting it might have stifled innovation and encouraged a climate of
suspicion towards innovation.204 Spanish law employs the principle slightly more,
but even then still primarily for public bodies and with some debate about the
exact scope of the rule.205 Chilean law seems to use a particular version of the
principle, capturing the extent of state involvement in private law, both before
and after harm has been caused.206 Dutch law seems ambivalent on the principle, it
being uncertain whether it is used in tort liability and certainly whether it
should be.207 Four further jurisprudential perspectives might help us to
understand the range of work risktaking might be doing. The first perspective comes
from Tony Honor�. Honor� has argued that risk-taking should be viewed not as
wrongful or not, but as a form of outcome responsibility. Responsibility for
outcomes is central to the character of the agent; for an agent to have meaning,
his or her choices must have consequences for him or her. �[T]he person who, in a
situation of uncertainty, has a degree of control over how it will turn out, and
who stands to gain if it goes in his favour, must bear the risk that it will turn
out to harm another.� This process does not involve any blame, so, in doctrinal
terms, fault is not relevant. The second perspective comes from Arthur Ripstein,
whose approach to risk puts it at the centre not only of tort law, but also of
criminal law. For Ripstein, there is responsibility for an outcome if the �fair
terms of interaction� have been exceeded. Those terms depend on balancing liberty
and security interests. For tort, this means that a person must take on the costs
which result from activities imposing risks on others, the so-called �Risk Rule�.
However, it cannot be that all risks imposed on others generate liability, and
Ripstein appears to use a fault standard to decide which risks are �owned� by the
defendant. This problem, of how to link a risk to a defendant, is important
throughout tort law, and inherent in the language of one person �imposing�,
�generating�, �being responsible for� or indeed �owning� a particular risk.
Ripstein uses it to do one thing further, to say that since the losses might lie
somewhere, it is fairer that they lie with the �owner� of the risk. The third
perspective is from Lon Fuller, who suggests it is possible to think of some strict
liabilities as a form of taxation or surcharge, not as a failure to obey a
particular rule or respect the right of another. A specific example of Fuller�s was
liability for ultra-hazardous activities, with the operation of those activities
generating liability for any losses that are caused. The burden on carrying out
this specific activity is that it will lead to damages for harm caused, all carried
out through the uncertainties of the tort law process. The final perspective comes
from John Gardner, who has explored a number of aspects of risktaking within tort.
First, Gardner cautions against using risk as a �common currency into which we can
concert all the various unwelcome possibilities we face in life.� He continued, in
respect of wrongs: �When a wrong is recognized as a tort, as we saw, the law
thereby effects a new distribution of the legal right to corrective justice in its
tort law form. That means a new distribution of the power to commence proceedings,
a new distribution of the court�s duty to award damages to successful plaintiffs,
and a new distribution of the duty to pay such damages on the part of defendants.
At least these three valuable things are being distributed, in one fell swoop, as
incidents of a single legal right. Each is valuable in its own way.� Gardner�s
point was that tort law is constituted by rights we have against each other as a
framework within which just distributions can operate, and that �risk� should be
understood within that framework.214 Second, Gardner analyses when strict
liability, which includes strict liability for risk-taking, becomes liability
imposed without the opportunity to avoid it. His focus is on the activity that is
regulated, not the harm that results. The issue for Gardner is when that prohibited
activity, denoted by �?� psi, encompasses so much conduct that it effectively
cannot be avoided: �As ?ing gets less specific and the associated pockets of strict
liability grow, the force of the argument that one could have ruled them out at an
earlier stage by simply not ?ing diminishes. It is one thing to say: If you want to
steer clear of strict liability, don�t go into the blasting business. It is quite
another to say: If you want to steer clear of strict liability, don�t go into
business at all.� At some point, the rule of law premise, that people can live
lives where it is possible to avoid breaching the law, is broken. This position is
particularly apposite for some of our systems, most obviously the wide strict
liability for any harm to a consumer in Brazil.

3.2.2 How risk is relevant to tort liability

Even once we accept that some kind of reasoning about risk plays a role in
establishing tort liability, there is not that much clarity about how it does so.
Our systems seem to have adopted an intermediate position whereby certain risks can
be taken without attracting blame or financial consequences for the risk-taker if
the risk eventuates, others lead to financial consequences or blame, and others
will only lead either blame or financial consequences if other conditions are met,
such as the risk being one that was unjustified to take. Expressions of this
intermediate position might take the form of strict liability and/or of new causes
of action. In fault-based liabilities, it is a person�s unreasonable creation of a
risk which generates liability; in strict liability, some characteristics of the
risk-taking, typically the chance not to do so and the benefit from doing so, are
relevant to it being an unacceptable risk to have taken. There are complex
questions of who can be said to be taking a risk, but they are not always engaged
in openly and even less often resolved. It does not seem that new rights are being
recognised through conceptualising the world in terms of risks, but it does allow
more easily for finding interference with existing rights.

4. LEGAL ACTORS
There are a host of legal actors involved in risk-reasoning, each bringing
different perspectives, competence and understanding. The volume contains some
fascinating insights into how politicians, academics (in philosophy, economics, law
and elsewhere) and practitioners can debate, shape the law.

4.1 WHEN AND WHO SHOULD ENGAGE WITH RISK?

Thinking of the world as in terms of risk tends to engender a sense that excessive
or inappropriate risk-taking should be subject to legal consequences. What happens
when risktaking is not dealt with by the legal actor most obviously placed to deal
with risks? This is most obviously the case where a government does not deal with
large-scale systemic risks. Spanish law has shown that the legislature is more
likely to intervene when fault is very difficult to prove and the person liable
created the risk. Where fault alone is difficult to prove, a reverse burden of
proof of fault might sensibly be used, and in Spain, that could be achieved by the
courts alone. In Chapter 16, Elbert de Jong points out that if there are risks,
even uncertain and complex risks, someone has to deal with them, and ultimately
judges have to decide the cases in front of them,so once the case is brought, they
will have to have an answer. If, as he suggests, the Dutch government has
historically tended to neglect the health and environmental interests affected by
economically beneficial activities, what litigation can re-set this risk? No
litigation can do that. But when such a risk does eventuate, a court could make
sure the burden is spread fairly. It might be said that courts are not well placed
to do so, for reasons that particularly include institutional and technical
competence. However, as a last resort, and in the face of claims appearing before
them, unless courts deal with apparent risks they would otherwise have to ignore
potential injustice. Brazilian judges have an arguably more generous framework than
their Dutch counterparts within which to regulate risk. The general clauses of the
Brazilian Civil Code and Code for Consumer Protection empower judges to deal with
cases equitably, including with respect to the allocation of risks in society.

4.2 JURISDICTIONAL CONFLICTS IN RISK

Legal rules generating liability from risk, or seeking to regulate risk-taking, are
available in more than one area of law, as noted already in section 2.8. A further
issue arises about how conflicts between different legal regimes are resolved.
Legal systems might select one area of law to generate liability from and/or
regulate risk, to the exclusion or relegation of others. It could be argued that in
some situations, tort law is not suited to preventing harms, so contract law or
public law might do so better. Where there is no express priority, divergent
approaches might be adopted in different branches of the law. We have seen one
example of this in France, where a victim�s success for a claim against a medical
professional based on harm caused by a defective medicinal product will depend on
whether it is heard as part of an administrative jurisdiction (with appeal to the
Conseil d�Etat), where no fault is required, or in an ordinary civil court (with
appeal to the Cour de cassation), where fault is required. Such substantive
differences encourage parties to find potentially illogical or spurious grounds to
bring claims before a particular court, and might even affect laypeople�s
behaviour. Similarly, in Chile, it seems that the specialist environmental courts
are solving the problem of uncertain legal frameworks by using private law rules as
best they can to determine liability.

4.3 SPECIAL ROLE OF INSURERS

Insurers are an important enabler of risk-reasoning in tort law. Insurers and
insurance lawyers were some of the first to develop the techniques and concepts of
risk that led to our modern understanding. Insurance begins as a question of where
liability should actually be felt. The insured�s premium purchases a contractual
right to pass the liability on to the insurer, who satisfies it out of its account
of premiums and their associated investment income. Yet insurance goes much
further, to affect much of tort law.
4.3.1 Effect of insurers on liability
On the one hand, the availability of insurance can encourage the extension of
liability. Legislators, and even sometimes courts, state that the defendant will
not feel the burden of the liability,so it is fairer than the victim suffering the
loss. Relatedly, the state might also intervene to impose compulsory insurance
obligations, as commonly is the case in respect of road traffic accidents. It is
interesting that France, with the fewest formal limits on its tort liability, also
appears to have the greatest number of compulsory insurance obligations and an
extensive system of private insurance. Sweden�s system of state-organised insurance
is more extensive, but operates in the first instance as an alternative to tort
law, rather than to supply the funds needed for the tort system to function. On the
other hand, insurance can also discourage extending liability. This kind of
influence is particularly felt at the legislative and executive level, perhaps with
mixed success, but is not absent at the coalface of litigation. Insurers are well-
funded, professional �repeat players� in litigation, building expertise, knowledge
and relationships. They typically have control of the insured�s defence, or are
being sued directly, and having indemnified their insured, they bring claims
against those who caused the loss, whether as subrogation or as a recourse action.
As our French authors showed, the insurance industry managed to resist statutory
reform of road traffic accidents for 20 years; they even managed to secure
significant taxpayer subsidy of the 2002 Law creating state compensation for
medical accidents where medical staff were not at fault. Insurance policy limits
can also function as limits on claims, since claimants know they will not recover
beyond the amount insured unless the defendant is wealthy.

4.3.2 Effect of insurers on risk regulation and insureds� behaviour

Aside from liability itself, insurance may affect the regulation of risk-taking.
Insurance cover might reduce an actor�s perception of financial risk from conduct,
thus reducing overall care taken and thus, potentially, leading to a greater number
of accidents. Since insurers provide cover against specified risks to specified
goods, they are therefore financially advantaged to reduce which risks eventuate.
They seek to shape their insureds� behaviour by a range of measures, from direct
benefits, like discounted or free gym membership for those with private medical
insurance, to threatening to withdraw cover without controls and precautions, or
indeed by using prohibitive premiums. However, insurance can also negatively affect
the behaviour of insured parties. An insured party might feel that he will face no
financial consequences so take less care. He might even believe another person, who
is uninsured, might suffer � the so-called �moral hazard�. The level of care taken,
and the number of deliberate torts committed, is determined by a range of conscious
and subconscious factors amongst the actors involved. Many actors consider the
physical or emotional risks to themselves from their conduct, or from the
inconvenience or reputational harm of litigation, regardless of the financial risk.
Even where an insurer is sued directly, rather than the insured, there can still be
strain in providing evidence and in reputational harm. Nonetheless, it is certainly
plausible to think an actor might behave differently if negative financial
consequences were perceived as much less likely to be felt personally. However,
there are a number of mechanisms that seek to prevent that inclination, both in
general terms to reduce risk, and to prevent a vicious circle where insurance leads
to more risk-taking, which leads to more insurance cover being taken out and more
expensively. Insurance policies typically contain limits on the cover, ranging from
removing cover for deliberate risk-taking and risk-promoting behaviour, such as
drinking alcohol, through to liability caps (which the insured might think would
lead to him being liable for the excess, when in practice it is not normally worth
the claimant�s effort to seek it from him) and the time limit on the contract
giving the opportunity for increased future premiums for riskier parties. Recourse
or subrogation claims might also restore personal responsibility. Even in the
extensively insured context of French law, it appears that medical practitioners
perceive tort law as playing a deterrent role. More generally, one argument from
moral hazard implies that deliberate decisions to take care could keep risks of
relevant harms from eventuating, which is a highly doubtful proposition.

4.3.3 The state as the insurer of last resort

The societies covered by our systems each seem to share an attitude that the state
ultimately must provide a net for those seriously injured or who face an
intolerable life. Spain takes this slightly to the extreme, with no private
�insurance culture� but with the assumption that �if something really serious
happens the state will provide some relief�; but it seems Spaniards even manage to
lack both an appreciation for insurance and for precaution. Sweden developed the
�Swedish Model� where the state is the first and the last step in compensation.
Chile has been moving in a similar direction, but only for the specific national
risk of earthquakes and other significant events. This seems to be premised on the
idea that the state should be providing information and guidance about the risk of
earthquakes, a task it is certainly easy to fail in. In general, most states
respond to their citizens� reliance by attempting to ensure effective tort
liability and the insurance cover to support it, a system of social security and
compensation funds where instances of risk are simply too complex or expensive to
resolve any other way.

5. PROCEDURE
There are many ways in which risk-reasoning might be expressed in legal procedures,
from the decisions lawyers take about which cases to take on and on what fee basis,
through to how class action procedures work and the impact of cost regimes. Three
examples will have to suffice. First, the way the legal framework for procedure
gives space for precise identification and resolution of issues of risk is a
logical starting point. It is not clear how much risk-reasoning overtly affects
procedural rules, with some systems clearly saying not, even if litigants and
parties must engage in such calculations. Some systems expressly allow their civil
courts to allocate the burden of proof to whom the court sees fit, a rule which
could benefit claimants in complex risk situations. Even where such formal rules do
not exist, similar informal solutions might well exist, as discussed above in
respect of causation in section 2.4 and in respect of fault in section 2.3. Second,
separate legal procedures which will deal extensively with risk might also be
carved out from normal civil court processes. These procedures might well have
different substantive rules, such as employing strict liability. One famous
historic example is workmen�s compensation. The claimant typically relinquishes the
right to sue in tort in order to set up a system of insurance for injuries at work.
These systems appear to be closer to social security than tort, using insurance to
ensure that even employees of insolvent employers received compensation; that
alignment in fact led to some countries moving workmen�s compensation within social
security and in turn perhaps removing the employer privilege. However, in many
countries, workmen�s compensation was one of the first places where the risks of an
activity took that activity out of normal tort law, an early indication of the
perceived limits of what tort law can do well. There might also be different rules
of evidence and trial, such as Sweden�s insurance-related boards. They handle large
parts of all injury cases and thereby even contribute to the case law through
simpler and cheaper proceedings with weaker procedural safeguards. Third, risk-
reasoning may be a useful vehicle for identifying and filling gaps or strengthening
weak civil procedures. It has already been noted that risk-reasoning might be
useful in making substantive claims which might otherwise not come to light, with
this phenomenon in the Dutch setting being the subject of Chapter 16. The same has
been true in some instances in procedure, but the three most interesting examples
in this volume have been the Dutch, South African and Italian approaches to class
actions. The South Africans have gone the furthest, with the courts creating a new
class action procedure within civil law claims to protect against risks to
constitutionally protected rights.244 Dutch courts have not relied, even in part,
on risk-reasoning to do something so extreme;245 however, it was a famous case
involving the risks and causation of cancer, the DES case, which led the Dutch
legislature to enact new legislation on Collective Settlement of Mass Claims (WCAM
in Dutch). This legislation is particularly strong, allowing judges to impose their
collective settlements, and might well get stronger soon if legislative proposals
are enacted. By comparison, in Italy, class actions do not seem to be used
extensively.246 This appears to be because the class action in Italy does not
provide much of an advantage to claimants. That configuration of a class action has
therefore not yet been reformed, whether as a means to address underlying risk
inequalities or for some more traditional reason. This is interesting, since risk-
reasoning is well known in Italy. It has so far been used primarily to explain
existing rules rather than develop rules, like class actions, further.

6. DEVELOPMENT
How tort law, and private law more generally, reasons about risk has been shaped by
its historical development in each legal system. Risk-reasoning is pervasive,
cropping up in different places within tort liability, but when deployed
successfully, predominantly advantages the claimant. That was vividly explained in
Spain, for its �almost strict� fault liability regime in the second half of the
twentieth century. It has similarly been seen in the use of presumed fault in those
countries which were strong adherents to the primacy of fault, seen noticeably in
Chile and in Brazil in the early twentieth century. The use of a presumption
enabled the underlying belief in fault as a key to liability to remain; for much of
the core of tort law in Brazil the belief in the role of fault has now faded as
tort law became more instrumental; the same is not true in Chile. The shift in
modes of regulation in the face of growing risk complexity was also seen in Italy,
and most likely world-wide, where a commandand-control model of food regulation has
given way to scientific evidence of all food-related risks, and the liability
mechanisms in contract and tort have caught up to this in some ways (but not in
others).

6.1. TIMESCALES
Risk-reasoning infiltrating tort law has been a long-term trend. Significant risk-
reasoning within tort law seems to have started to become explicit towards the end
of the nineteenth century, famously championed Saleilles and Josserand in France.
The most structurally obviously expression of risk-reasoning has been the growth in
strict liability. Strict liability based on risks somehow associated with an
activity found fertile ground in personal liability claims increasing in number and
scale due to industrialisation. Risk-reasoning was driven by the reality of
claimants being in a weaker position to bring claims, and when they did, requiring
them to prove the defendant�s fault seemed to burden them unfairly given the ways
harm was being caused. Many jurisdictions therefore began to institute rules which
reduced the importance of fault. Some such claims were moved out of tort law
entirely. We have seen this in Spain, with the Ley Dato, the first example of a
theory of risk in use in Spain. In other situations, legal systems made the changes
by operating within tort law itself. Change was often legislative, particularly to
promote new technologies like roads, rail or similar. But change could also come
through judicial decisions. Our Dutch authors highlight the role of risk, as a
concept within tort law, in recent judicial development of the law on asbestos,
cancer, smoking, lead paint and a host of other issues. They point out that courts
and underlying legal frameworks look likely to be under continued pressure to adapt
to risk conceptions of tort claims, particularly if damages can in the future be
claimed in collective actions. And as our Swedish authors point out, while
societies still care about the risks in road or rail traffic, they are also
increasingly seeing sedentary work as having risks, with repetitive strain
injuries, posture and the effect of electronic technology a more recent cutting
edge of analysis. This long-term infiltration, or reconceptualising, through risk-
reasoning has featured spurts of rapid development in risk-related rules. The
spurts very often have catalysts, seeds of change in one area which inspire wider
developments or analogies. The Brazilian government�s drive to develop railroads
around 1912 led to a new regime of presumed fault, with some Brazilian states going
further and enacting no-fault schemes for workplace accidents. Pioneering work by
Alvino Lima and Jos� de Aguiar Dias pushed for the development of strict liability
based on risk (indeed, according to Lima, �From Fault to Risk�), despite, or
because, the 1916 Civil Code contained no general rules for strict liability. The
recent shift in South African risk jurisprudence might well be part of a wider
picture of the constitutionalisation of private law, but knowing why it happened
between 2011 and 2013, rather than, say, five years earlier, or five years later,
is difficult. The underlying problems, like diseases in prisons and amongst the
wider population, have certainly been there for some time. The new constitutional
settlement from 1994 would certainly take time to work through different aspects of
the legal order, and it takes time for litigation to reach the apex court. More
generally, it is plausible that time might be needed, even a little under 20 years,
for a court to develop its confidence and techniques to span the breadth of silos
of legal categories and show how constitutional rights can affect even tort claims,
such as elements of causation, strict liability or class actions. There appears to
be a key period in the growth of risk-reasoning in the 1960s. Perhaps it was part
of the transformation in society more generally after the deprivations of World War
II. Particular landmarks are Pietro Trimarchi�s seminal book of 1961, Andr� Tunc�s
Road Traffic Proposal in France in 1966,261 Brazilian work on the socialisation of
risk under Wilson Melo da Silva drawing on foreign authors and the first state
compensation payments for accidents at work, and the work culminating in key
milestones from Sweden�s Tort Liability Act of 1972. The growth both in wide risk
theories and narrow applications of risk in this formative period may have been a
key step in developing the modern balance of risk allocation in our systems.

6.2 DISCOURSES, FEEDBACK AND STRUCTURE

Risk-reasoning has involved a delicate balance between academics, courts and
legislators, with developments in one feeding into the others. It has involved
discourses and processes of feedback from one stage to the next. This is neatly
captured in the French development of road traffic rules and the inherent risk of
road use. It took a Cour de cassation case of 1930, Jand�heur, to give effect to
the academic theories of the previous few decades. It did so by dusting off what
had appeared to be a niche provision in the Code, article 1384. This created a form
of strict liability for the harm done by a car.It was through further court
decisions and academic writings that theLoi Badinter was passed in 1985 which
created a full statutory scheme along similar lines. That scheme was the
intellectual child of academic Andr� Tunc, developed in part from his experience in
the United States. But the scheme languished for 20 years, until the Cour de
cassation goaded the legislator into acting by barring the defence of contributory
negligence from article 1384.1. This was an outcome so impractical for insurers
that the legislator duly passed Tunc�s proposals. Our systems have been developing
over time, but the nature of the underlying legal framework continues to have a
significant effect. Thus, the lack of wholesale reform or codification in England
and South Africa actually seems to have inhibited their development of extensive
rules of risk-reasoning. For the most part, in those jurisdictions, historic forms
of action are adapted without a new theoretical basis on risk. Overarching legal
frameworks can be highly resistant to change, outside of revolutions or
painstakingly slow movements. Even when change might come about, systems vary in
how much they are open both to change and in how to do so. It is much simpler to
change small parts of a system. New fact patterns might come to light which
challenge the existing law, whether by case law or by legislation. In the
Netherlands, for instance, an extensive and accessible class action process is a
key part of how risks can be litigated. In South Africa, such a class action has
just been created. There might also be matters of procedure, such as whether
certain remedies are particularly suited to riskreasoning.265 On the other hand,
new ideas, concepts or norms might be developed in response to these stimuli,
necessitating sufficient openness from those who could roll out the new rules and
sufficient academic legal and scientific material to shape the new discourses and,
ultimately, new rules.
6.3 SHIFTING PARADIGMS
In some cases, risk-reasoning has engendered a change in what law was used to do.
Law as a means of regulation and changing real-world practices through the use of
the threat of liability as an incentive may well have been understood for
centuries, but the particular use of law as a political tool might have been a
realisation put into practice in one of its fullest forms in the middle of the
twentieth century, as explored in respect of Sweden. A similar shift in priorities
about law�s role in society can be seen during the discussions of a new Civil Code
for Brazil, prior to its enactment in 2002. The re-establishment of a democracy and
the Federal Constitution of 1988 represented a greater focus on individuals as
bearers of human rights and also as members of a social solidarity. They were legal
actors who should not bear inappropriate risks. This in turn led to the rise of the
Code of Consumer Protection as a source of strict liability norms for risk,
rivalling the Civil Code. Most interestingly, the Brazilian example reminds us that
there can be a strong sense of tradition and timing, of legal frameworks truer to
the self-identity of legal actors. The ultimate result is that in Brazil, the new
Civil Code can at times seem more like a subsidiary rule; this is particularly
apparent in article 927 of the Civil Code.268 The Civil Code is newer and developed
after a series of post-democracy statutes which seem to be seen as more
foundational. By contrast, we have seen that in Chile, the historic Bello Code
seems to retain its foundational status despite other forms of regulation growing.
Risk-reasoning has also involved a process of integrating strict liability not
simply as a way to achieve a result, compensation, but as being either normatively
equal to or even more appropriate than, fault. Thus in Spain, the early origins, in
1900, of workmen�s compensation set up a doctrine of professional risk, with the
worker, the weaker party, no longer being left without effective recourse in the
face of the increasing complexity and dangerousness of the workplace. But in part
through increasing numbers of compulsory insurance obligations, Spanish law started
to see strict liability as a criteria equal to fault for generating liability. That
equivalence is seen to be the case in Brazil as well. As our Brazilian authors
explain: �Each form of liability is autonomous with regard to the other and in no
sense is �subjective� liability hierarchically superior to, or thought to be more
important than, strict liability in Brazil. Rather, each of these types has its own
scope of regulation, clearly defined by law, meaning that parties may not choose
when fault-based liability or strict liability is applied.� Yet the reality in
Brazil appears to be that strict liability is the norm in tort. What is abundantly
clear is that a certain level of uncertainty is possible within a functioning legal
system. For example, the English are not certain on whether imposing a risk is
itself a wrong within negligence. Many forms of uncertainty can be �priced in� by
legal actors, but only where the issues are predicted, agents are rational and
there are alternatives to the cost lying where it fell. Risk-reasoning provides a
way to consider that legal uncertainty in advance, just like any other uncertainty,
but, paradoxically, changing the focus of a dispute to risk can introduce
substantive legal uncertainty. We certainly see South African law being unsure
ofwhat will happen as the constitutionalisation of tort law doctrines in the face
of risks to fundamental rights develops. Risk-reasoning certainly seems to have
greater flexibility to adapt existing categories of law or conceptions of how the
legal system is working. The issue becomes how much uncertainty is being introduced
or resolved, at what time, and to what doctrines.

7. WHAT DOES RISK-REASONING DO FOR TORT LAW

�Previously, an �accident� was perceived at law as a unique and exceptional event
between an author and a victim. The focus on risks challenges this by emphasizing
both statistical regularity, and expectation of occurrence [and downgrading the
role of free will and fault]. The focus on risks also tends to emphasise
interdependence. Any action may create a risk � accidents are �normalised�.
Causation, previously vital, need not be emphasised at all.� �The risk reasonably
to be perceived defines the duty to be obeyed, and risk imports relation; it is
risk to another or to others within the range of apprehension.� Risk-reasoning is
insidious. As these quotations from Jenny Steele and Justice Cardozo remind us,
risk-reasoning can twist our perception of events from established and traditional
perspectives on fault and incentives, both directly and by encouraging us to
rephrase them as involving risk. This rephrasing tends to extend liability, often
finding favour as a technique to extend liability, particularly on the back of
professional risk calculation and agglomeration by insurers. It has done this in a
relatively short time, having become overt only since the mid- to late nineteenth
century, and has come to pervade most of tort law. Yet at the same time, despite
its appeal, risk-reasoning has not completely supplanted other forms of reasoning
within tort law. In particular, fault retains an evaluative element which
transcends a simple calculation of risk, benefit and prevention. In addition, the
core rights tort law seems to protect do not seem to have been changed, but the
evaluation of interferences with them has expanded. We have also seen signs that
the way risk-reasoning works may vary depending on whether it is being used to
extend liability to where it has not reached before or to change the reason why
liability is imposed. These apply whether risk-reasoning is creating new pockets of
liability, or being used to reason through existing areas of liability. There has
been some interesting divergence amongst our systems in how risk-reasoning has been
employed. The core question the whole project has been examining is what does risk-
reasoning do for tort law? What does thinking about �X� help us to do? The evidence
from our systems suggests that risk-reasoning has had two different functions.
First, it has a normative function: it appears to justify and limit liability;
second, it has a non-normative function, with the concept of risk claiming both
flexibility and to better represent the reality that the law must govern. The first
function is a normative claim about which risks can be taken with reasonable care,
and which cannot, such that if they are taken, and harm results, the defendant must
compensate the victim. Risk provides a normative basis for why there should be
liability, most commonly by an assertion that taking certain risks is unlawful and
potentially wrongful. The underlying rights that tort law relies on do not seem to
be added to or subtracted from by risk-reasoning. It is evident that risk-reasoning
is thought a good enough reason, indeed in many cases the predominant reason, for
imposing strict liability for harm. There are also areas where risk-reasoning does
not seem to have had much impact. One such area is in intentional tort actions,
where the fault level is high enough that reference to risk seems to have been
subsumed. That said, such torts are, normally, the least practically important area
of tort law across most legal systems. Risk-reasoning has also clearly not
supplanted the daily practice of tort law, where fault and traditional notions of
causation tend to dominate. That said, tort litigation occurs in the space provided
for it by insurance, both mandatory and optional, and insurance is predominantly a
matter of risk. The non-normative functions of risk are flexibility and a claim to
better represent reality. Flexibility means that risk-doctrines are �new� and
�clean�; �risk� is new and thus free from established limitations and �baggage�
within the rest of tort law. Risk-reasoning can therefore promote change and most
easily does so to expand liability, though that does not have to be th direction of
travel. It might be that this flexibility is particularly suited to certain types
of reasoning, such as balancing out competing policies for the law. There are
nonetheless seams where risk-reasoning is joined to traditional tort law, or across
different ways of allocating risk. We have seen this in section 2.1.4 on how our
systems resolve conflicts across different regimes of liability and to a lesser
extent in section 2.8 on internal comparisons. The claim to better represent
reality adds force to the relevance of risk-reasoning on at least one of three
levels. First, an ontological level, that risk is the reality of the world, so
recognising it gets us closer to some level of �truth�, a goal across the legal
system. Second, risk as a way of looking at the world, a sort of scheme of
intelligibility. Third and finally, from a consequentialist perspective, risk-
reasoning might be said to better capture the mechanics of how reality applies to
law and therefore allows better treatment of certain events. This appears to be the
origins of the some of the earliest modern reasoning. These non-normative functions
could apply to any component within tort law, but they apply with particular force
to risk-reasoning. It is also interesting that they can be combined, since if
reality is the anchor, it seems difficult to be flexibly attached to it. However,
risk-reasoning is adapting to the inherent uncertainty in future events, relying on
that uncertainty as the reality it is claiming to represent. For so long as the
relevant issues are uncertain, both these claims will be true, but each might
change at different rates. Risk-reasoning itself might harden through the
accumulation of legal rules and case law. Society might return to fault as the only
determinant of liability, and do so with less reference to rational risk
calculation, or it might essentially replace tort law with first-party insurance.
Risk-reasoning enriches tort law and expands its scope, insinuating itself across
almost all components of tort liability. So far, merely taking a risk is almost
never a ground for tort liability, but risk-taking has increasingly been part of
why someone is liable for harm that he is connected to. This volume can only
provide a snapshot of the development to date, leaving many sights unseen and
significant scope for the future on working out what we gain from risk reasoning
and what we would be doing without it.