Civil liability is an institute in permanent evolution. After the challenges brought about by the increase in dangers, the growing anonymity in social relations and the extension of production chains, the dogma of liability is faced with challenges arising from the fact that the same situation of liability originates from the actions of a (determined or undetermined) group of subjects and affects, in a homogeneous or heterogeneous way, a determined or undetermined group of injured parties. Bear in mind, in particular, the issues of uncertainty about the identity of the cause, the causal process and the identity of the victim. In addition, there is uncertainty about the amount of damage.
In mass relations, there are also problems linked to coordination between the institute of civil liability centred on imputation of damages - which has historically gained independence from criminal liability - and the sanctioning law of the regulatory authorities, which is purely preventive/deterrent in nature.
These lines of evolution thus justify a renewed look at classic problems of civil liability - such as (1) the function of civil liability, (2) causality, (3) the plurality of agents and/or injured parties, (4) the contribution of the injured party or parties to the damage, (5) the concept of damage and its determination or calculation, (6) the intervention of an idea of proportionality in calculating the compensation due, (7) the fate of the collectively established obligation to compensate, (8) the temporal dispersion of the harmful effects and their reflection in the system of limitation of the obligation to compensate, (9) the negative protection in mass relations (injunctive and eliminatory relief) -, based on the problems posed in the particularly complex context of mass relations.
In this light, environmental liability, liability in consumer relations, and liability for violation of regulatory rules (competition, banking, etc.) are particularly suitable fields of analysis, although not exclusive.
The project aims to confront ten different groups of civil liability problems in mass relations, always in the triple dimension of (1) analysing current Portuguese law (and, where appropriate, comparative law), (2) case law and (3) possible prospects for legislative reform:
- The impact of situations of mass injury on the recognition of new roles/functions for civil liability;
- Uncertainty as to who caused the damage (particularly when there is a limited number of potentially responsible parties: cases of so-called uncertain alternative causation);
- Uncertainty as to the identity of the victim;
- Uncertainty about the causal process;
- Uncertainty as to the extent of the damage (particularly in liability for infringement of competition law)
- Consideration of the injured party's contribution to the damage when calculating compensation;
- The importance of the principle of proportionality in setting compensation;
- The destination of the collectively established obligation to compensate;
- The temporal dispersion of the harmful effects and their impact on the statute of limitations for the obligation to pay damages;
- Negative protection in mass relationships (injunctions and eliminatory).
In the course of the research, other questions may be raised or, of course, those already identified here may be specified.
The issues raised are particularly relevant and topical. They form part of the fundamental core of the line of research in which the project is organised and require coordination with other CIDP lines of research, especially the "New Perspectives on Regulation, Compliance and Private Enforcement" line.
This project has a close thematic link with the project "Risk Society and Mass Society”. For this reason, a close link between the two working groups should be maintained during the implementation of both projects, which will be ensured in particular by the existence of four joint researchers.
The interdisciplinary nature of the topic of mass offences means that the line between it and the "Risk Society and Mass Society" project must be clearly defined. The present project (Civil Liability in Mass Relationships) deals exclusively with the (upstream) theme of the problems generated by mass relationships in civil liability. The "Risk Society and Mass Society" project is only concerned with procedural matters (downstream).
Consequently, the purpose of the two groups working together is to provide a framework for the collaboration that is indispensable, particularly given the well-known importance of substantive law solutions in defining and responding to procedural problems.
The co-operation of the two teams of researchers also ensures the strict separation of the thematic research work, both by preventing redundancies that generate inefficiencies and uncertainties and by obviating gaps that would otherwise arise.