ABSTRACT
The essay addresses the potential application of the expression ‘sustainability’ in the context of torts, investigating the most recent developments in Italian law. By sustainable tort law, the author means a liability distributed among all members of society through the use of the insurance mechanism: in his view, sustainability ends up coinciding with insurability. This conclusion may be verified under different angles: first, from the point of view of sustainable compensation, for which it is necessary that the quantification of damage may be determined ex ante and that the restorative nature of the compensation itself is confirmed (under this approach, punitive damages would be non-sustainable). Secondly, analysing the criterion of imputation of liability, the author points out how the acceptance of certain liability rules have made tort liability as a whole non-sustainable (the reference is to the Italian experience of medical liability, which then determined the need for legislative intervention, with the exit of insurance companies from the market). Third, and this is only a predictive judgment, tort liability would become non-sustainable if called upon to provide compensation for claims that could not be covered by an insurance guarantee (the reference in this case is to the damage caused by the Spring 2020 health pandemic).
