Zbornik Radova Pravnog Fakulteta u Nišu (Jan 2019)
Insurance against liability for damage arising from emissions
Abstract
The research presented in this paper has been inspired by the legal provision contained in Article 156 (Request to remove the risk of damage) of the Obligations Act of the Republic of Serbia. This provision envisages the limitation of the amount of damages that are awarded in situations where the nuisance (harmful emission) arises from the performance of an activity of general public interest, which has been duly authorized by the competent state authority that issued an administrative permit. That provision deprives the injured party harmed by the emission (the neighbour) of the preventive protection mechanism; second, it deprives him of the possibility of seeking natural restitution (injuctive relief), and compells him to sustain the emission in exchange for some compensation. For this reason, the author argues for the abrogation of that provision. However, if the provision is to be repealed and if the civil judge adjudicating cases in his area of tort liability is given full freedom to impose the property sanction he/she deems most appropriate and effective, such a solution implies a danger or inhibiting socially useful and necessary activities, which may consequently lead to suppressing any entrepreneurial initiative. Thus, the author proposes the introduction of a specific model of insurance against civil liability, which would specifically focus on the problem of property damage stemming from harmful emissions, as a way to prevent the detrimental effects on the economic activity of the emmitter (which is generally beneficial for the community).. This would allow for a fair balance to be struck in the exercise of civil subjective rights. The balance would be seriously compromised if the the Serbian legislator keeps the existing statutory provision or if it abolishes it but fails to institute the proposed type of insurance against civil liability for damage.
