RICERCA ITALIANA     

From professional malpractice to strict liability

Università degli Studi di Genova

Abstract

The group of research aims at studying the expansion of tort law in relation to those areas of professional malpractice that are leaning toward the rules of strict liability both ni the legislative developments and in the case law. Such trend regards financial intermediaries that today are strictly governed by the rules of European law, liabilities connected to the use of information technologies, liabilities linked to the provision of healthcare services and drugs and the liability of the State and its public administrations in the context of jurisdictional proceedings (from the liability for preposterous lawsuits to the liability of undue process of law) and in the context of the adjudication of public contracts (where the claims of the entrepreneurs unduly excluded from the adjudication contest were finally regulated by the European law). The target of the program is, after a thorough examination of the case law and the literature, to verify the emergence of a new kind of tort liability, founded on imputation criteria that are linked to the technical knowledge of the tortfeasor, and the progressive abandonment of the criterion of fault as the foundation of tort liability. Such new trend will be examined in all areas of tort law, from the liability for breach of contract to the precontractual and tort liability. In this meaning the term strict liability was used to make reference not to the scheme of no fault liability based on the concept of risk of articles 2051 and 2049 of the civil code, but to a liability that is based on a professional standard or on specific technical abilities that induced the victims (e.g. the small investors who are induced to buy financial instruments on the basis of mistaken economic information or the users of healthcare services that are not adequately provided). In other words, we could even end up finding a new form of tort liability that is not dependent on the traditional notion of fault as we know it today with its moral implications and its concrete evaluation and that would be founded on the divergence of the behavior of the tortfeasor from a standard of conduct he is supposed to adopt. The group of research will present the results of the study with pubilcations and proposals of legislative reform. <<<

Principal Investigator

Giovanna VISINTINI Università degli Studi di GENOVA

Research Objectives

In a first part of the research, the target will be to collect all kind of information on the Italian case law on subjects linked to the research and to make a comparison of these decisions with the decisions taken by judges and courts in other European countries, such as France, Germany, Spain and England. The literature in these countires will also be studied. Concerning the liability of the public administrations the group of research will also study the decisions of administrative courts in the last years, starting from when this was assigned the competence on tort claims related to the provision of public services. Concerning the research on damages arising from undue process of law, the group of research will also study the case law of the European court of human rights.
The analysis of the European law will be particularly important with respect to the liability for the use of information technologies and the liability for the provision of services (and particularly in the field of healthcare) where there is a draft EU directive on the provision of services that are potentially dangerous to human health.
In a second part of the research, the materials will be organized in sectors and inserted in an electronic databank. The sistematic analysis of this material will allow the publication of casebooks, guides for the interpretation of the case law, texts and other studies to be published in the most important legal reviews both in Italy and abroad.
Finally, another target of the research is to present the results to the scientific community and to present proposal for legislative reform on specific aspects, such as the possibility to introduce a form of class action in Italy and the possibility to use tort liability as a measure of punishment for outrageous behaviours of the professional or for abuse of dominant position. <<<

Timescale

24 months

National and international background

The creation of a common European market and the increasing importance of European directives have presented the Italian scholars with new challenges and fields of study in tort law.
The starting point of the research will therefore be the European legal framework and its interaction with the Italian legal system.
In this context the liability for the use of information technology, professional malpractice and the liability of the public administrations are of great importance.
Also in Italy we had important legilative reforms: from the law on the fundamental rights of consumers to the law on the administrative process that established the right to access and participate of the citizens, together with the law that established the possibility to obtain compensation for the violation of "interessi legittimi", to the reform of the Constitution itself, by which new important principles in the administration of the State were introduced.
All these reforms force the scholars to study the functioning of these legal instruments as a tool for countering the misuse of public powers by the public authorities and the State.
Another context of great importance regards the liability for false information. Here, particular attention will be paid top the liability of financial intermediaries, distinguishing thiose cases where the intermediary simply acts as such from the cases in which the intermedediary actually promotes the purchase of a particular financial instrument thereby assuming an autonomous contractual position. The research will analyse various statutes, both Italian and European.
Another field of study will concern the liability of the internet provider and the nature of its liability (i.e., whether this is strict or not).
Another sector that perfectly shows the new trends in tort law is medical malpractice and the liability for the provision of drugs, where doctors and hospital are increasingly being condemned by courts on the basis of criteria of strict liability. In this context the research will study the draft legislation (so called legge Tommasini by the name of the proposer in Parliament). The study of causation will be fundamental, as doctors and hospitals are often condemned in circumstances where the causal link between their behaviour and the damaged suffered by the patient is not clearcut.
It is in this context that the analysis of tort law as a policy tool will be conducted. <<<