Lider-Lab Piazza Martiri della Libertà, 33 I Pisa ITALIA

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1 Lider-Lab Piazza Martiri della Libertà, 33 I Pisa ITALIA PERSONAL INJURIES UNDER THE BULGARIAN LAW AND JURISPRUDENCE Milena Stoyanova I. Legal basis The Bulgarian Civil Law is not codified in a unique legal document. Civil liability under the Bulgarian legal system finds its legal basis in different normative acts. The Law on Obligations and Contracts (LOC) introduces a general clause underlying the institute. Its article 45 states «Every person is obliged to remedy the damages that he has caused by fault». The remainder of the legislative body also provides for special civil liability clauses where the specificity or the nature of a social activity makes a differentiate regime appropriate. The function of the civil liability under the Bulgarian legislation is twofold: - To compensate the victim for the damages suffered. The doctrine expressly underlines that the realization of the liability shall in no way lead to the unjust enrichment of the victim. - In an interpretative decision, the Plenary of the Supreme Court underlines the deterrent effect of the institute, which provisions shall encourage citizens to respect the legal order and not to damage the rights and the interests of the natural and legal persons 1. With view to this aim, several are the principles underlying this institute. Firstly, one should be aware of the personal character of the liability. Only the person who at fault has caused damage bears the legal consequences for his behaviour. The Bulgarian tort law also recognizes the solidarity for unlawful behaviour. This does not constitute a deviation from the personal liability principle, as the actors are held responsible for their proper actions, which in combination have lead to the wrongful result. Secondly, in principle, legal liability is incurred for faulty behaviour. The Bulgarian tort law recognizes strict liability only under special clauses. The requirement for fault is retained even with regard to the liability for defective products and the liability for risk. Immaterial damage caused by defective products can be claimed only under the general regime in the Law on Obligations and Contracts. The Bulgarian legislation provides not only for liability for one s own actions but also for third one s actions. Again the damage should be the result of a faulty action. Thus the employer is liable for the damages caused by his employee at fault and the parents are liable for the action of their minor children. The fairness principle plays a central role in determining the amount of the liability, as courts are required to fix the compensation due to a victim of a particular injury by taking account of it. 1 Ordinance N 7/ of the Plenary of the Supreme Court

2 Lider-Lab Diritti e regole Piazza Martiri della Libertà, 33 I Pisa ITALIA 2 II. Elements constituting the liability the General Clause (Article 45 LOC) A. The damage The damage is the legal fact that triggers the implementation of the legal liability institute. Still, the establishment of a damage suffered poses some practical problems arising from the necessity to derive the meaning that the legislator has put into this concept. One approach for defining the damages rests on the Differenztheorie that requires comparison in value of the victim s patrimonium before and after the wrongful act. This approach sited by the doctrine does not seem consistent with the approach of the judges that refuse the appropriateness of such mathematical calculations. Besides, it does not seem to be in line with the provision of Article 52 LOC that empowers the court to set the amount of the compensation in accordance with the fairness principle. Thus, the compensation being the equivalent of the damage suffered is determined by taking into account the specificity of each case. This does not mean that practically, the scope of the civil liability extends over infinite number of objects that might be injured. Although the notion of patrimonium is uncertain as to its legal boundaries, the doctrine is unanimous in defining it as the sum of rights, obligations and factual relations. This doctrinal definition complements Article 51 LOC that states, All damages that are direct and immediate result from a wrongful act are subject to compensation. Not only the legislator does not give definition of the damage but it also abstains from pointing out the types of damages deemed worthy of consideration. The jurisprudence has revealed in a considerable number of cases the will of the legislator. Two types of prejudices are covered by the civil liability regime. The distinction between them lies in the nature of the legally protected object: - Damages caused on property (material damages); - Moral tort (immaterial damages). Moral tort might take several forms. It might result in breach of the physical integrity of the victim. It might endanger the life of the victim or even deprive it from it. In all those cases damages result from the violation of a fundamental right provided for in the Constitution of the Republic of Bulgaria itself. The high importance of the social values and irrevocable rights recognized by the Constitution makes their breach socially unacceptable. A manifestation of that negative view is the institute of the civil liability in most of the cases coupled with penal liability. There is no hindrance to cumulate civil and penal liability. Whenever the right to health is impaired, the victim has the right to compensation for both material and moral damages. The jurisprudence upholds that the injurer should be held liable for the successive damages to the victim caused by the unfortunate evolution of the initial injury. In this case, compensation is due if a causal link between the damage and the worsening of the health of the victim exists and this eventuality has not been considered by the court in the initial ruling 2. The amount of the new compensation is determined in accordance with the fairness 2 Ordinance N 4/ of the Plenary of the Supreme Court, p. 10

3 Lider-Lab Diritti e regole Piazza Martiri della Libertà, 33 I Pisa ITALIA 3 principle for the pain and sufferings caused only by the worsening. It should not duplicate the immaterial damage awarded for the initial distress 3. The Supreme Cassational Court has been addressed with several cases alleging the civil liability of the publishers of periodicals for the publication of articles containing insults and slander referred to the plaintiff. The court ruled out in favour of the applicability of the civil liability regime to those cases. The reason is that the right of individuals to dignity and good public image of the victim are two individual rights recognized and guaranteed by the Constitution 4. In line with this approach, the Courts also award the right to immaterial damages to the close relatives of a person deceased as a result of a wrongful act. The aim is to compensate their sufferings and the loss of a moral support, resulting from the damage 5. Thus the Courts consistently make the distinction between immediate damage: one suffered by the victim itself and reflexive damage: suffered by third persons who are in certain relations with the victim. Still, the right of those third persons arises only in case of actual immaterial damage. The Court refused to award damages to the son of a deceased victim although he was eligible in principle for such compensation. Considering the fact that the son had expelled his mother from her flat, had refused to offer her support for living and having learned about her death, has refused to bury her on his expenses, the judge concluded that the son has not experienced any pain and suffering from the death of the victim and the civil liability of the defendant cannot be engaged 6. The award of material damages to the close relatives of the victim mainly covers their loss of material support. The strictness of the civil liability regime is mitigated where the victim of the injury has contributed to the occurrence of the wrongful result. Art. 51, p. 2 LCO provides that If the injured has contributed to the occurrence of the damages, the compensation can be lowered. So the injurer is held liable only for the damages resulting from his behaviour. What matters is the causal link between the behaviour of the injured and the wrongful result, fault on his behalf is not required 7. With view to that, the Plenary concludes that even when a minor or a person lacking the legal capacity to act (lacking negozio giuridico) contributes to the wrongful result, art. 51, p. 2 is applicable. The applicability of the civil liability regime is excluded in the cases of unavoidable defence (Art. 46, p.1 LOC), the occurrence of random event or force majeure circumstances. In all those cases no fault is involved on behalf of the injurer. In this line of thought, the driver of an ambulance escaped civil liability because the Court considered that the accident provoked by him was due to circumstances out of his control (he had been blinded by the lights of the coming cars, the ambulance entered into a sand-covered area that prevented him from reducing his speed). Under their influence, the defendant had not been in a position to stop, instead he had lost control over the vehicle thus causing the accident and the death of the victim 8. 3 Check it!!! 4 Decision N 340/ on civil case N 178/97, Decision N 648/ on civil case N 267/98 5 Ordinance N 2/ of the Plenary of the Supreme Court 6 Decision N 131/ on criminal case N 47/95 7 Ordinance N 17/ of the Plenary of the Supreme Court 8 Decision N 220/ on civil case N 76/99

4 Lider-Lab Diritti e regole Piazza Martiri della Libertà, 33 I Pisa ITALIA 4 In the eventuality of immediate necessity (Art. 46, p. 2 LOC), the injurer acts in order to protect the patrimonium of the injured from damages greater than the ones prevented. Although the behaviour that caused the damage is not socially dangerous under the wording of the Penal Code, damages should be repaired. The law remains silent as to who owes compensation in this case. The Supreme Court Plenary shares the view that the state of immediate necessity may arise out of human behaviour or out of an object, being the property of an individual. In those cases, the compensation should be charged to the person who has created the state of immediate necessity, respectively to the owner of the object that caused the damage or to the person who supervised the object. The person acting under the conditions of immediate necessity shall not be held liable for compensation. In the rest of the cases, the person whose property has been saved from damage or destruction should repair the damages. Here comes into play the ancient legal principle that He who reaps the benefit has to bear also the negative consequences related to it. B. Illegality of conduct or result Similar to the French system, the Bulgarian legislation on civil liability does not expressly make a distinction between illegality of conduct and fault. Nevertheless, the concept of illegality is deduced by interpreting the respective provisions related to tort. Article 49 LOC provides that Any person who has charged another person with the completion of a task is responsible for the damages caused by him in the execution of the task or in relation to its performance. In an interpretative decision 9 the Supreme Court clarifies that where the use of a particular object is carried out in violation of the instructions for exploitation or of the generally accepted rules, the liability for the caused damages has for its basis Art. 46 or 49 LOC. This is a clear indication that the Supreme Court considers relevant for the liability under Art. 49 illegality of conduct. The latter can consist either in: - Infringing an absolute right of the victim (a photograph that was denied access to a restaurant for the performance of his activity, claimed damages from the restaurant holders. The court ruled out that the access was denied on the basis of existing contractual relations with another photographer and no threat or use of force was implied to prevent him from working in that restaurant. In the lack of illegality of conduct damages cannot arise 10 ), or - In the non/observance of a prescribed standard of care, or - An unwritten rule derived from the general legal principles and the predominant morality (The refusal to get married to a woman is unjustified when does not follow from the rule of reason or the rules of the moral. In such cases the immaterial damages suffered by the victim merit to be compensated on the basis of the civil liability provisions 11 ). In the a fore-mentioned interpretative decision, the Plenary of the judges goes on saying that notwithstanding the accurate use of an object, where damages have resulted out of its exploitation, liability is founded on Article 50 LOC: The owner of an object or the person supervising it are mutually responsible for every damage caused by the object in question. According to the interpretative decision, 9 Ordinance N 4/ of the Plenary of the Supreme Court 10 Decision N 567/ on civil case N 775/96 11 Interpretative Decision N 32/ of the Plenary of the Civil Law Judges at the Supreme Court

5 Lider-Lab Diritti e regole Piazza Martiri della Libertà, 33 I Pisa ITALIA 5 compensation is due even where the damage is caused by appliances, machinery, instruments and other objects, certified by their producer as satisfying all the safety requirements and where no technical way is available to eliminate thoroughly the threat of the occurrence of damages. That reading of the legal provision evokes the illegality of result as a possible condition to incur civil liability. In confirmation to this interpretation, the judges expressly state that the rationale underlying the hypotheses of Art. 49 and 50 LOC lies in the fact that the production techniques develop faster than the safety of production itself. C. The Fault The General Clause on civil liability is founded on the concept of fault. The fault is perceived as a precondition and ultimately a justification of the obligation to repair the damage caused. Legal revocable presumption for fault is introduced. The notion of fault derives its contents from the provisions of the Penal Code that defines the two possible manifestations of socially unacceptable behaviour, i.e. intention and negligence. Fault is present whenever the author of damage has deviated from a legal obligation weighing upon him. In the case of intent, he envisages the wrongful result from his actions and either desires to achieve it (direct intent) or puts up with it (eventual intent). In the hypothesis of negligence, the person assumes the eventual damaging result but considers himself capable to prevent its occurrence (selfassurance) or acts in a capacity that obliges him to predict the unfortunate eventuality but fails to do so (professional negligence). The establishment of fault in civil liability cases serves multiple purposes. Not only it is a prerequisite to engage the responsibility of a wrongdoer, but it also designates the persons that should compensate a particular damage. Solidarity might come into play when several individuals provoke the damage. In combination with the objectively established factual circumstances of the case, the form of fault and its extent are decisive to fix the amount of the compensation due to the victim. This assertion does not run contrary to the principle that compensation should reflect actual damage suffered, as intentional violations normally have greater intensity and affect deeply the legally recognized interests of the victim. Thus immaterial compensation for intentionally caused personal injuries is likely to be higher. The Bulgarian legislator entertains the classic concept of fault, having two distinct aspects: objective, being the deviation from a standard legally prescribed behaviour and subjective the capability of the author of an infringement to be conscious of the character of his behaviour and to foresee its damaging outcome. The inclusion of fault as a component of the civil liability reflects the negative attitude of the legislator regarding particular types and forms of social behaviour. In the context of intent reproach is directed to the consciously adopted wrongful behaviour, while in the case of negligence reproach is targeted at the deviation from the legally prescribed standard of care. Regarding the establishment of fault, the civil judge is faced with two eventualities: 1) It has to impose civil liability for damages caused by committing a crime. This hypothesis does not provoke many practical difficulties. The Plenary of the Supreme Court in its interpretative Decision N 7/ has pronounced that the sentence of the Penal Court regarding the establishment of the committed crime,

6 Lider-Lab Diritti e regole Piazza Martiri della Libertà, 33 I Pisa ITALIA 6 illegality of the behaviour and the fault of the actor are binding on the Civil Court in the setting of the damages that the victim of the crime has suffered. 2) Where damage is caused but the wrongful behaviour does not constitute a crime, the person who directly caused the damage is held liable for its compensation. The designation of that subject is done in relation to the third element of the civil liability institute causal link between the illegal and faulty behaviour and the damages incurred. D. Causal link The doctrine and the jurisprudence are unanimous that the causal link between the wrongful behaviour and the damages should be proven in each individual case. This implies that the injury to the victim should be attributable to the activity of a particular person, being the defendant. The factual circumstances of each individual case will be decisive for the legal qualification and relevance of the committed act. The burden of proof lies on the defendant and his fault is presumed. III. Special clauses on civil liability under LOC 1. Solidarity (Several and joint liability) 1.1 Article 53 LOC Article 53 LOC states that If the damage is caused by several persons, all of them are held responsible for it. According to the LOC, solidarity can arise either out of a legal provision or out of a contract. This claim is particularly important whenever an insurance against civil liability has been concluded. The Courts have been faced with the problem whether solidarity exists between the insurance company and the author of the injury. The Plenary of the Supreme Court clarified this problem. The application of Article 53 LOC in this case is excluded because the insurance company is not liable because of the occurrence of the damage but is bound by virtue of a contract. Solidarity exists between the persons that have caused the damage to the victim. Obviously, the insurer does not fall in the category of the wrongdoers. The grounds for its payment is the realization of the risk covered by the insurance contract and not the occurrence of the damage itself. The victim of an injury is not obliged to bring an action against all those persons collectively responsible under Art. 53 LOC. Solidarity exists only in the relationship between the injurers and the victim. Every one of the injurers is responsible to pay the compensation due in its entirety. If he does so, he does not replace the victim in the relationship. Solidarity between the other injurers towards the injurer who has paid their obligation does not arise. What he can ask from the others is the difference between the total sum of the compensation and the share attributed to him. 1.2 Article 49 LOC responsibility of the employer for the acts of his employees (principal agent liability) As a matter of general legal principle, persons are held responsible only for their own acts. Deviation from this principle, however, is admissible regarding the

7 Lider-Lab Diritti e regole Piazza Martiri della Libertà, 33 I Pisa ITALIA 7 civil liability. This deviation is established by virtue of the law that proclaims that A person who has entrusted another person with the execution of a work, is responsible for the damage caused by the latter in the working process or with regard to it (Article 49 LOC). According to the Supreme judges this norm provides for a liability that by its legal nature differs from the contractual liability and the liability for damages 12. The jurisprudence has clarified that principals under this norm can be both natural and legal persons. The Plenary of the Supreme Court has ruled out that as far as the liability of a legal person has to be engaged article 45 LOC (the general clause) does not apply to the benefit of Article 49 LOC. Still, the liability under Article 49 LOC is accessory to the one under Article 45 LOC where the injured person cannot claim damages against the wrongdoer, he cannot equally avail himself from the provision of Article 49 LOC by claiming damages from the legal person. Thus the liability of the legal person is subsequent to the liability of the employee. The difference from the general civil liability regime lies in the fact that liability arises for the illegal and faulty behaviour of a third person that has caused damage to the victim. In this case, the person that mandates another person to do a job does not do anything forbidden by the law, i.e. the law authorizes the execution of the work from a third person. If this was not the case, then the employer would have contributed to the occurrence of damages and this would have engaged his liability under the general regime of Art. 45 LOC, in connection to Article 53 LOC. Therefore, charging a third person with a task does not constitute délit and does not presuppose the guilt of the employer. The following legal facts trigger the application of the special civil liability clause: - The addressees of the norm need to be in an employer-employee (principalagent) relationship with one another, the third person acting in accordance with a given mandate. The behaviour due might be either for action or for inaction but in any case it should be in execution of obligations arising from the law, the technical or other rules or from the nature of the work itself The damage has occurred in the process of the execution of a working task or is related to it. Even when the resulting damage is not the direct result from the execution of the work, to engage the liability of the mandator, it suffices that the occurrence of damages is linked with the performance of the working task. - No causal link is needed between the occurrence of the damages and the behaviour of the person held liable (the principle). The mandator is liable also where the third person has undertook the damaging act in breach of the instructions he had been given or of the requirements for the job. The liability regime of Article 49 LOC does not apply where the employee has caused damages because of significant deviation from the given mandate. - It is necessary that the third person has acted at fault. The form of the fault does not matter. Thus the Court has ruled out that a notary who has certified a will by not observing the form for such deal need not to have acted intentionally. Even 12 Ordinance N 7/ of the Plenary of the Supreme Court 13 Ordinance N 9/ of the Plenary of the Supreme Court

8 Lider-Lab Diritti e regole Piazza Martiri della Libertà, 33 I Pisa ITALIA 8 negligence on his part suffices to engage the liability of the Minister of Justice, being his employer 14. The function of this special liability clause is double. It is a sort of insurance against actions committed in breach of the technical and working requirements. Then it stimulates employers to elaborate working rules and to ensure appropriate supervision of their execution in order to prevent the occurrence of damages out of a working activity. The law holds liable employers for the appropriateness of their choice of working staff and the creation for control mechanisms over the working activity of each single employee. Engaging their faultless liability is a sort of guarantee that victims will get compensated even if the wrongdoer-employee is in a weak economic situation. The employer is held liable for all the damages that the victim has suffered. The jurisprudence maintains that joint liability (solidarity) arises between him and the employee that has performed badly. The employer/principal and the employee/agent are jointly liable but not under Article 53 LOC that requires joint causation of the injury. Instead, the joint liability arises by virtue of the law and is derived by means of analogy from the joint guarantee institute, applicable to contract liability, provided by Article 138 LOC 15. In line with this, the liability of the employer shall not exceed that of the wrongdoer. Even when the damages have resulted from a crime committed by the employee within the scope of his mandate, the employer could also be held liable under the general clause of Article 45 LOC Liability of parents (or supervisors) for the actions of their minors The ability of discerning, which is presumed, is a necessary condition of the civil liability capacity, constituting the subjective component of fault. The Bulgarian LOC introduces a civil liability hypothesis where the age of the injurer is the special factor that excludes the applicability of the general regime. The age matters in order to define the discerning ability of the injurer. Where such ability is absent the actor cannot be held liable for the damages he has caused. This line of thought underlies the envisaged liability of parents for the actions of their minors. The legal basis for the liability is Article 47, p. 2 LOC according to which The person who is obliged to supervise the actions of an incapable is liable for the damages caused by the latter, save for the inevitability of their occurrence. This norm interpreted in relation to Article 48 LOC: The parents or the adopters that exercise parents rights are liable for the damages caused by their children that have not come to age and live with them creates material obligation for third person s actions. The legislator considered that children (minors) should not bear the burden of the legal obligations as are unable to realize the exact content of the respective legal provisions. Thus children are considered to be incapable under the wording of Article 47 LOC 17 due to their impossibility to envisage the consequences from their actions and to judge their lawfulness. 14 Decision N 750/ Article 138 LOC states: Under the guarantee contract, the guarantor undertakes before the creditor of a third person to be responsible for the obligation of the latter. 16 Ordinance N 17/ of the Plenary of the Supreme Court 17 Decision N 1208/ on civil case N 915/98

9 Lider-Lab Diritti e regole Piazza Martiri della Libertà, 33 I Pisa ITALIA 9 Liability of parents or supervisors for the damages due to the actions of their minors is liability for fault. The latter consists in failure of parents/supervisors to exercise due care and control over the minors behaviour. The doctrine upholds that the envisaged liability seeks to sanction the non-observance of duties arising from the special capacity of individuals who are parents/supervisors. The difference between article 47, p. 2 LOC and Article 48 LOC lies in the capacity of the persons responsible. In the first hypothesis, the supervisors are the ones liable, while under the second the parents or those who exercise parents rights owe the compensation for the damage. The supervisors are obliged to carry out the concrete duty to control the behaviour of the incapable, while parents are held liable because of infringing the abstract obligation to bring up their children properly. Article 47, p. 2 LOC specifically allows for exoneration from liability where the parents/supervisors provide evidence that the damage would have occurred even if they have complied with the required standard of control and care. 3. Strict liability The LOC recognizes that an injury can result not only from human behaviour. The only fact of the occurrence of damages triggers the applicability of the civil liability regime where the cause for the damages is: - An object (Article 50, s. 1 LOC) The law puts in place the solidarity principle to uphold the liability of the owner of the object and the person who has to supervise the object. - An animal (Article 50, s. 2 LOC) Even if the animal has run away or has got lost, the owner and its supervisor are responsible. In those two hypotheses liability does not stand as a reproach for faulty behaviour as is the case under the general clause. One can perceive cases where neither intent, nor negligence can be present, as one can hardly predict damages from an object, which seemingly corresponds to all safety requirements. The Supreme Court interprets the norm in the same manner 18. The norm reflects the consciousness of the legislator that technical progress moves quicker than the legislative provisions. Instead of acting on ex post basis, he assumes the strict liability approach to deal with illegality of result cases. Thus, the owner and the supervisor of the object are liable in front of the injured person even where the producer claimed complete safety of his product, and even where the state of scientific development does not provide for a way to make the object safer 19. The doctrine (Goleminov, 1999) expressly stresses that although fault is not a prerequisite for the strict liability to arise, it retains practical importance. Depending on the presence or lack of fault on behalf of the owner or the supervisor, different legal qualification will apply if fault is established, liability will be borne under the general civil liability clause (Art. 45 LOC) and respectively, if the damage results only from the object without any wilful human behaviour, then Article 50 LOC will apply. 18 Ordinance N 17/ of the Plenary of the Supreme Court 19 Ordinance of the Plenary of the Supreme Court

10 Lider-Lab Diritti e regole Piazza Martiri della Libertà, 33 I Pisa ITALIA 10 The Plenary of the Supreme Court by its Ordinance 7/ ruled out that the owner and the supervisor might exonerate from liability under Article 50 LOC in three eventualities: firstly, where the damage is provoked by force majeure; secondly, where the damage is attributed entirely at the injured person s fault and lastly, where damage is attributed to a third person s fault. Under this hypothesis, strict liability is incurred even in the case of random event. IV. Liability of the employer under the Labour Code (Article 200 LC) for damages to health and the impaired working capacity of the employee The liability of the employer under the Labour Code for damages to the health or the working capacity of the employee is a separate type of civil liability, which precludes the application of the general civil liability regime under Article 46 LOC. This special clause is designed to reflect the complexity of the employer-employee relationship and the specific object of the labour contract, i.e. the performance of labour, consisting in expenditure of physical or mental effort, required by the nature of a particular working position. Right to compensation for damages arises to the benefit of an employee that has suffered injuries due to an employment accident or to a professional illness and where the injuries cause three types of harmful result: - Temporary incapacity for work; - Enduring incapacity for work exceeding 50 % or - Death of the employee. The liability of the employer arises notwithstanding the lack or presence of fault. Its objective character is strengthened by the second paragraph of Article 200 LC that provides for the employer s liability also in the case of force majeure, where the accident has occurred in the execution or on the occasion of a working activity even without order from the employer but in his interest. The legislator further widens the boundaries of the liability extending it to damages that have occurred in a break from work on the working premises. The case law of the Supreme Cassational Court makes explicit the peculiarities of the specific regime under the Labour Code 20. Its prerequisites are legally relevant labour relationship, occurrence of an employment accident or professional illness. The circumstances which have led to the occurrence of the accident or the illness, faulty behaviour on behalf of a responsible of the company or lack or presence of a causal link between illegal behaviour and the damage are not constituting elements of the employer s liability. V. Liability for damages caused by a defective product Article 50 from the Law of Obligations and Contract, providing for a special regime, compared to the general civil liability clause of Article 45 LOC, has a general character, compared to the civil liability clauses for consumer protection. Whenever the injured person has the special characteristics of consumer the special Law on 20 See Decision N 1429/ of the Supreme Cassational Court

11 Lider-Lab Diritti e regole Piazza Martiri della Libertà, 33 I Pisa ITALIA 11 Consumer Protection and the Rules for Commerce (LCPRC) regulates the possible disputes. Still, LCPRC limits the scope of its application. Article 14 LCPRC provides for liability of the producer for material damages resulting from a defective product. Article 15, p. 4 LCPRC expressly states the boundaries of the application of the consumer protection regime: The provisions of this Chapter do not limit the injured person to seek compensation for immaterial damage under the general regime, and for material damage where its action under this law (i.e.lcprc) has been rejected. Thus, Article 50 LOC complements the consumer protection regime. VI. Damage to the environment The Constitution of the Republic of Bulgaria in its Chapter II lists the fundamental rights that are guaranteed by the legal order. One of those is the right to healthy and favourable environment corresponding to established standards and norms. The legal mechanism for individuals to benefit from this constitutional provision is found in the Law on Protection of the Environment (LPE). Its Article 170, p. 1 states Anyone who causes damages at fault to a person because of polluting or damaging the environment shall compensate them. The action of the injured person/s can claim putting the infringement to an end and the elimination of the consequences from the pollution (Article 171 LPE). The scope of application of those norms seems quite broad insofar as it seems to cover both material and immaterial damages. The intention of the legislator is to leave room to the jurisprudence to go beyond the traditional categories of tort law, allowing it to adapt the legal practice to the specificity and the big value of the injured object, i. e. the environment. Nevertheless, the requirement for guilt as a constituting element of the liability for environmental damage risks compromising the good intention of the legislator. It seems more appropriate to choose an approach that would submit this type of liability to a similar to the liability for risk logic. To establish the subjective component of illegal behaviour might turn out extremely difficult or even impossible because of the specificity of the environmental damage. In certain cases victims to such injuries are not in a position to establish the subject responsible for the damage. Even if they succeed in doing so, the causality between their injury and the behaviour of the defendant might not be obvious. The proof of guilt might become even more difficult considering that the negative effect from environmental damage might manifest itself a long time after the pollution took place. A stricter legislative approach will make entrepreneurs more sensible as to the externalities from their activity and will exercise a deterrent effect, stimulating them to invest in environmental friendly technologies of production. The importance of litigation against injurers is sure to be negligible compared to the efforts of companies themselves to prevent the occurrence of environmental damages. Thus the socially desired result will be achieved more effectively and the assumed legal policy for protection of the environment will have an enduring effect. VII. Scope of the civil liability

12 Lider-Lab Diritti e regole Piazza Martiri della Libertà, 33 I Pisa ITALIA 12 Following the occurrence of damage, obligation for the injurer arises to repair the negative consequences from his behaviour. The injurer faces two options. He might concede to compensate the victim voluntarily or he might refuse to do so. In the latter eventuality, the victim might seek the assistance of the courts to the end of obtaining the legal protection to his rights provided by the civil liability regime. The main function of the injurer s obligation and of the civil liability is to remedy the damages or to compensate the victim that has suffered them. While stating the consequences from wrongful behaviour, the Law on the Obligations and Contracts introduces the concepts of remedy of damages and compensation of damages. The two notions do not coincide in their meaning, the first being wider in its scope. Remedy of damages allows for a choice between restoring the state of things before the injury by physical amendments to the injured object and paying for the loss in value of the object that has resulted from the damage. Compensation for damages designates only the second possibility, i.e. remuneration of the loss in value. According to Article 51 LOC All damages that are direct and immediate result from a wrongful act are subject to compensation. The jurisprudence has interpreted the scope of the civil liability by suggesting different criteria for the classification of the types of damages. According to the nature of the injury, damages are material and immaterial. Where the right to health is impaired compensation is due for both types of damages. Material damages are awarded because of the loss of working capacity that deprives the victim from earning its material support. The amount of the compensation differs accordingly to the seriousness of the injury. Where, at a later point in time, the illness caused by the injury worsens, the victim is entitled to another compensation but only for the damages that have occurred from the worsening. If the injury has led to temporary incapacity for work, the compensation reflects the changes in the workers payment following the initial injury. In case of enduring incapacity for work, material damages are determined solely on the basis of the payment before the occurrence of the injury. Subject to compensation are expenses incurred for medical treatment, home care etc. Where a relative of the injured person, in order to take care of the victim, is constrained to quit work, the loss of salary by this third person is also considered worthy of compensation. Actively legitimised to claim compensation in this case is not the third person taking care of the injured but the victim that has directly suffered the damage. Тhe amount of the compensation equals the salary due to a medical attendant. Immaterial damages are awarded for pain and sufferings of the victim of an injury. According to Article 52 LOC their amount is determined in accordance with the fairness principles. The Supreme Court explicitly requires that the civil judges state explicitly all circumstances that call for the award of immaterial damages and their importance for the fixing of the compensation due. If the injury has deprived its victim from life, the relatives of the deceased are entitled to compensation of both material and immaterial damages under the civil liability regime. The persons legitimized to claim damages have to fall under either of two criteria 21 : 1) Persons, who by law are entitled to maintenance by the victim and/or 2) Persons lacking capacity for work, who have been supported by the injured 21 Ordinance N 5/ of the Plenary of the Supreme Court

13 Lider-Lab Diritti e regole Piazza Martiri della Libertà, 33 I Pisa ITALIA 13 although the latter is not under legal obligation to provide care to them. The claimants falling under those two categories are eligible to compensation for material damages equal to the loss of their material support from the victim. Their immaterial damages are determined by taking into account all the circumstances, indicative of the actual pain and sufferings. Another classification of damages distinguishes between loss suffered (damnum emergens) and loss of future profit (lucrum cessans). The doctrine is unanimous that compensation under the civil liability regime covers the losses incurred from the damage, but as to the loss of future profit, the opinions are split. The divergence arises out of the fact that LOC expressly provides for compensation of expectation and reliance damages only under contract liability. The view that solely losses suffered are worthy of compensation is upheld also in older decisions of courts but at present both scholars and jurisprudence consider it outdated and unfounded. The evolution of opinion is based on systematic interpretation of the norms on the civil liability in the LOC and the interpretative decisions of the Plenary of the Supreme Court reflecting established weaknesses on the level of case-by-case practical implementation. Thus, the notion of damage was perceived to have wider scope, used to designate any unfavorable consequence resulting from an injury. The doctrine also points out Article 51, p. 3 LOC stating that Where a compensation is awarded for loss of working capacity, it can be lowered or raised, if a change in the working capacity, related to the damage, occurs as expressly recognizing compensation of expectation damages.