Ius Commune Conference 2017: Workshop on Liability and Insurance

By Dr. William Bull, Doris Beganovic and Stefan Cîrjan


The annual Ius Commune Conference was held this year in Utrecht on 23-24 November 2017 and comprised various workshops, one of which was on the subject of ‘Liability and Insurance’. The theme of this workshop was ‘The legal battle against lawful products or services that are potentially threatening to human health’. The workshop was chaired by Anne Keirse; professor of Private Law at Utrecht University and a judge at the Court of Appeal in Amsterdam.

Professor Keirse started the workshop by giving the opening speech, which highlighted the key aspects of this research theme. These included the main question of when tort law should intervene to compensate people suffering damage to the full extent of their loss in cases of lawful products potentially threatening human health. She indicated the contrast between tort law intervening, for example, to hold Volkswagen liable for launching a new car that causes injury to 25% of the persons who drive it, and the tobacco industry not being liable within the framework of tort law for producing cigarettes that cause numerous deaths. Or, even more contentiously, why would food providers not be liable for producing food which could eventually have a negative impact on human health? Three possible solutions were put forward to regulate this matter: First, governments should prohibit the sale and marketing of such products which could potentially cause harmful consequences; Second, financial compensation should be provided to the individuals who consume such products; and, third, criminal law should intervene and punish companies.

After his opening remarks, Dr. Bald de Vries, Associate Professor at Utrecht University School of Law – Institute of Constitutional, Administrative Law and Legal Theory, gave the first presentation. The topic of his presentation was ‘The regulation of inherent risks and side effects of eating and drinking from the social philosophical perspective’. Food products are one of the most debatable subjects with regard to the approach that tort law should take when addressing them. In these types of cases one is faced with the paradox of using law to combat a lawful act. The emphasis was that human autonomy and personal liberty should be indeed respected, but one of the main functions of law is to protect society from harmful conduct and only doctrines of law would be capable of having a sufficiently strong effect to regulate this kind of problem. However, the law does not provide an adequate means for enforcement of this matter. The main question was therefore what the normative foundation is upon which we can address lawful acts that could cause potential harm. He named two assumptions following from this question; that the acts do not intend to cause harm and that the state of art is that knowledge exists that a certain act may be harmful. Furthermore, he made a distinction between types of lawful products according to the level of harm they cause. The legal assumption was that if there were freedom of contract, everyone could make individual lifestyle choices based on rational considerations and empirical desires. However, to what extent can an individual bear responsibility for his/her own choice? There are three limitations to freedom, which share the same ratio in the harm principle defined as the freedom to do whatever we want as long as we do not cause harm, these limitations being tortious acts, criminal and legislative actions. Subsequently, he addressed John Stuart Mill’s ‘harm principle’ as a possible solution, which chooses the neutrality of law over the maximization of welfare by imposing positive and negative obligations, such as that the state should not limit freedom but limit harm. However, he qualifies lawful acts as unlawful for the simple reason that they cause harm, which implies that morality and harm go side by side, which should not be the case. Other principles were then outlined: Firstly, perfectionism, which assumes that adhering to a good lifestyle, as required by doctors, will cost you your health and lead to higher insurance premiums. Therefore, it will limit a person’s freedom, which is considered a dangerous consequence. Secondly, paternalism was mentioned as acting in the best interest of others for their own benefit, but that would also entail limiting the freedom of individuals and is therefore rejected. Lastly, utilitarianism was discussed as a concept of maximizing the general welfare and judging the value of actions on the basis of their ability to increase life opportunities. The problem with this solution was that it is impossible to determine what general welfare is. Therefore, none of the solutions from the legal world could answer the question. A solution outside the legal world was provided by libertarian paternalism, which would increase the freedom of consumers but also place a big emphasis on the responsibility of choice of architects, including private and public actors. Therefore, the conclusion of Dr. Bald de Vries’ talk was that there is no answer on how to address harmful products within the legal framework.

The next speaker was a PhD student at the Institute for Civil Procedure of the University of Leuven – Pieter Gillaerts. His topic was about ‘Preventive tort law and its limit and opportunities’. Conceptually, prevention looks at conduct from the ex ante perspective, focusing mainly on the future before the actual occurrence of a harmful conduct and implying the importance of deterrence in causing the future harm. This obviously creates a contradiction within tort law, which deals with questions after the harm has occurred. Therefore, lawful but potentially health-threatening products can lead to three types of uncertainty: risk, exposure-effect and effect uncertainty. After shortly elaborating on the key elements of tort law, namely fault, damage and causation, three problems were addressed: The  weighing of the interests of parties, striking a fair balance between flexibility and uncertainty, and the difference between prevention and anticipation.

A PhD researcher at the Law Faculty of Ghent University then gave a presentation on the topic ‘The curious case of warnings and instructions in product liability law’ by addressing the European Product Liability Directive. This directive covers harm that affects persons and consumers of goods by assessing the objective test on the manufacturers. He emphasized the diversity of warning rules and structures among the EU Member States. In addition, preventive warning systems need various amendments and focus more on empowering the victim to successfully employ an objective test against the supplier. However, consumers still have to rely on the information provided, which would potentially change their behaviour. Therefore, sellers may reasonably assume that their warnings will be read and that the more information they provide will increase the quality of the product and make prevention more persuasive. According to Article 4 of the European Product Liability Directive, the burden of proof is on the claimants, meaning that they have to prove that an optimally designed warning or alternative warning would have changed the behaviour of the victim. However, the CJEU is lowering the burden of proof, as seen in its case law. Also, when the question of defect is imposed, consumer expectations and risk utility need to be addressed. More emphasis should be placed on the costs and benefits of safety measures and that has to be accommodated within the whole European system. Risk utility should not favour the victim, but should be impartial.

Lastly, Dr. Riana Rijnhout, Associate Professor at the Molengraaff Institute for Private Law – Utrecht University School of Law, gave a presentation about ‘MOSH/MOAH and product safety and liability’. She addressed the problem of MOSH & MOAH (MM), defining them as hydrocarbons of mineral oils, which are not good for human health. There is no legal norm for addressing them and no reference point, as it is still unknown whether they are dangerous and what degree of MM is actually safe for human health. The European Food Safety Agency stated its potential concerns associated with MOSH by saying that high exposure to MOSH could lead to tumours. With regard to MOAH, it was not possible to characterize the risk and the EFSA considers that, as a part of food, MOAH could be of potential concern. The problem arising is uncertainty of risk and no valid method to analyse MM in food, which leads to uncertainty about the effectiveness of safety measures. The Dutch government found no legal grounds for the Dutch Food Authority to act because there are no existing rules and it is all still under the umbrella of scientific uncertainty. The government understands that the industry should take preventive measures, but the competent Minister is not sure which. Therefore, various food safety regulations have emerged, and it remains to be seen how this will be dealt with in the future.

To conclude, this workshop provided participants with useful knowledge and fierce debates with regard to harmful lawful products and how the tort law system should address them. All European states should work together in addressing this problem and provide the necessary means to individuals to secure their rights.