- Elgar original reference
Edited by Jürgen G. Backhaus
495 likely to cause injuries (both physical and economic) to third parties, no matter the size, frequency, or predictability of these injuries, because they can always be translated into cost. This pressure, when exerted on those who have general control of the risk, may be more efficient in certain cases than the incentive created by a fault based liability system, which is exerted on those who participate in a risky activity. (Some research conducted in the United States on psychology of incidents supports such statements.) The relationship between risk liability and the possibility of insuring against such risks thus assumes particular relevance. Though Trimarchi does not believe it appropriate to understand the theory of liability only as an ‘insurance’ mechanism, he deems the insurability of the risk to be very important in the design of a liability system. Thus an entrepreneur should only be liable for injuries caused by ascertainable, calculable risks. Only then can the entrepreneur include the risks as costs and protect himself against liability by insurance or self-insurance. Thus, as Trimarchi notes, ‘there must be a constant (not occasional) relationship with the risk’. Furthermore, according to him, strict liability promotes insurance and this, in the absence of a general social security system, implies the additional benefit of preventing the further social harmful repercussions of uncompensated injuries (see Trimarchi, Rischio, p. 39). The structure of strict liability Trimarchi suggests that the risk liability concept plays its role only if applied to economic activities, and not biological ones. Biological...
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