Risk Based Regulation and Cost Effectiveness before the Courts: Experiences of a judge

摘要

The five above cases represent different forms of legal approaches to risks: In the first and second cases the courts did not use the concept of risk or, at the most, paid it only verbal recognition. It appears from itself that the fact that an accident happened meant that the risk was too high. This is a position commonly taken by courts and in legal discussions, but it leads to an unrealistic and inefficient requirement for zero risk. The reason does not lie in the law. This operates here with undefined legal terms (negligence, inadequacy...) that would allow a risk-based approach to be used anyway. The reason for this not occurring lies in the mentality of lawyers: The law considers property, persons and life as absolutely protected lawful goods, whose damaging or destruction, per se, is not acceptable. Indeed, the law acknowledges the term of allowed risk, but mostly it is not used in a systematic and coherent way. In order to better implement the concept of risk, it is necessary to have intensive interdisciplinary discussions between lawyers and risk scientists. In the third case, the court had given a judgement that was not only based on no-risk but is contra productive. The ground for this lies in that deterministic, prescriptive rules exist to which the court feels bound. To realise a risk-based approach either: 1. the consciousness of the law makers regarding a risk-based approach must be increased so that such senseless rules will not be or put into power, or, 2. the courts must be given the possibility to avoid having to use such contra-productive or senseless rules. Also here it is necessary, that in the courts a corresponding awareness results. The fourth case is concerned with a decision about uncertainty. The court cannot quantify the risk based on existing scientific knowledge, and demands therefore a safety margin based on the precautionary principle. This is, in principle, reasonable. The question remains about the extent of the safety margin. As a basic principle - the bigger the uncertainty is, the larger the required safety margin must be. The scientific knowledge must be improved in order to enable a more realistic risk-based regulation. In the fifth case, the court had used a quantitative risk-based approach, but not a cost-effectiveness criterion. The reason for this lies in the fact that in the Swiss Accident Ordinance, in the first line, the collective risks are not limited with a systematic cost-effectiveness criterion but rather with an acceptability curve in a F/N-diagram. (Only within a transition zone between acceptable and not acceptable risks, and within the frame of proportionality, the economic impact is taken into consideration.) Here it is to reflect upon the methods of limiting the collective risks through F/N-diagrams, to replace them with a cost-effectiveness or a cost-benefit analysis. A deciding limiting factor concerning the use of risk arguments in the courts is the effort that must be done in order to obtain enough and reliable risk analysis. In contrast to science, a court cannot simply leave a question open and research further, it is obliged to decide. Furthermore, in practice, a court can only exert a limited effort to decide on a case. When no method is available to analyse and quantify the risks with a reasonable effort, the court will therefore base its decisions on intuitive estimates, on its common knowledge or on available deterministic rules, without being able to judge whether these are reasonable or not. The better, simpler and more reliable the risks can be analysed and quantified, the more risk-based approaches will find acceptance in law practices.