FAULT LIABILITY – 2021

Fault liability (subjective responsibility) is primary and general in comparison with the damage criteria (causative or objective). Fault liability assumes that there is a certain subjective correlation between a claimant and causing the damage (deliberate and voluntary element with reference to the realized adverse consequence).

The fault is usually determined as a subjective element of anti-legality and presumes a subjective correlation between the claimant and consequences of his actions. According to the fault criteria for the damage from traffic, both the natural persons (Providing they have the capacity to commit tort) and legal persons may be liable for the damage.

The fault may manifest in its mildest or severest form. Pursuant to Article 158 of the Law of Obligatory Relations, the fault exists when the tortfeasor has caused damage either deliberately or out of negligence. The severest fault level is an intention (premeditation, dolus). The action would be held deliberate if the doer was aware of its consequences and yet agreed to undertake it. The intention may be direct (when the doer aimed at its consequences) or possible (he became aware that adverse consequences might result from the action, and yet unwillingly agreed to undertake it).

Fault liability and statistic data:

Fault liability what is intention and example?

Possible intention is usually present in case of the drive that violates administrative regulations referring to the safety in traffic. When it comes to establishing the civil and legal liability for the traffic damage, the notion „intention“ is by rule matched with the criminal and legal notion of „premeditation“.

However, there were examples of judicial decisions where the possible premeditation (the existence of which is regulated by the criminal court decision) has not been made equal with intention, particularly in situations when the damage is in progress, where at the driver has been found with the low level of alcohol in blood (around 0.80 promille)[1].

Fault liability – what is carelessness – what is a careless person?

A milder form of the fault, compared to intention is carelessness. In theory, carelessness usually refers to the abstract carelessness (culpa in abstracto), which is present if the tortfeasor’s action does not correspond to the act of an abstract role model, such as a careful driver, for example.

Carelessness my be divided into conscious and unconscious carelessness. We talk about conscious carelessness when the tortfeasor is aware that adverse consequences may result from his actions, but carelessly assumes that he will be able to prevent them. Quite contrary, unconscious carelessness does not exist when the tortfeasor is not aware of the option of adverse consequences, although, as any other average person, he would have to be aware of any such consequences.

Fault liability – what does lose capacity mean?

Whoever temporarily loses the capacity to decide shall be held liable for the damage, unless he/she proves that the condition has not been caused by his fault (Article 159, Paragraph 2). This provision is applicable to situations when it is necessary to assess the capacity to decide with the chronic users of alcohol. The judicial practice stands that those persons should be held liable if they put themselves in the condition of the deduced cognitive functioning from alcohol.

[1] Decisions by the Supreme Court of Croatia, Revision No. 1248/84 and Revision No. 45/85