In 2005, the European Group on Tort Law (EGTL) published the text and commentary of its “Principles of European Tort Law” (PETL). In Article 4:201, the PETL included a rule on the reversal of the burden of proof regarding fault, which was intended to bridge the gray area between fault-based liability and strict liability. Nearly 18 years after the publication of the PETL, legal scholar Barbara Steininger revisits these gray areas.1 In doing so, she first outlines what is meant by the concept of gray areas between strict liability and fault-based liability. Next, she examines how these gray areas are addressed in the Principles and, finally, offers comments on Article 4:201 of the PETL and the way forward.
What do we mean by “gray areas”?
To achieve this objective, we must first define the meaning of fault-based liability and strict liability. At first glance, this seems relatively simple. Liability that presupposes fault and, therefore—as Pierre Widmer noted in his commentary on Chapter 4 of the PETL—requires some “fault attributable to the perpetrator of a harmful event for failing to exercise due care to prevent harm.” Strict liability, on the other hand, is more difficult to address. It can be understood in a broad sense, encompassing any type of liability that does not presuppose culpable conduct on the part of the liable party and, in this sense, would also include, for example, vicarious liability. It can, however, also be understood in a narrow sense as absolute liability where no defenses are possible. In the sense that the term is used in the PETL, it includes no-fault liability for damages caused by risks arising from the defendant’s sphere, particularly from certain objects or dangerous human activity, but not vicarious liability, which is addressed separately in the principles.
Although theoretically clear, the dividing line is blurred in practice, as comparative studies have shown that the degree of strictness of liability varies across most European jurisdictions. On the one hand, fault-based liability is often made more stringent, notably by raising the standard of care or reversing the burden of proof. Typical examples can be found in the area of liability for animals or structures. For example, Article 56 of the Swiss Code of Obligations provides that the owner of an animal is liable for damages caused by it, unless the owner proves that he or she exercised all due care in keeping and supervising the animal.
On the other hand, strict liability can be mitigated through defenses that allow the defendant to avoid the obligation to pay damages under certain circumstances, particularly when adhering to a very high standard of care. In this regard, still using Austrian law as a reference, the owner of a motor vehicle may avoid liability under § 9 of the EKHG (Motor Vehicle and Railway Liability Act) by proving that he and his agents exercised all due care under the circumstances.
This shows that fault-based liability and strict liability are not completely separate categories but, in their purest form, represent the two ends of a continuous spectrum. To quote Horton Rogers: “Strict liability and fault-based liability are convenient alternatives in terms of classification and exposition, but a closer examination suggests that, in terms of substance, there is in fact a continuum rather than two categories.”
Another factor that makes a clear distinction difficult is that the formal starting point for a liability regime does not necessarily allow for a conclusion regarding the strictness of the liability regime in substance. In other words, although a liability may be formally based on fault, it is possible for it to be applied in such a way that, in practice, it becomes strict liability. For example, if the required standard of care is so high that it can hardly be met by anyone. This is, for example, the case with Dutch liability of motor vehicle drivers toward passengers. Since the special regime under Article 185 of the Wegenverkeerswet (Road Traffic Act) applies only to non-motorized road users, such cases fall under the normal fault-based civil liability regime of Article 6:162 of the Dutch Civil Code. However, nearly superhuman skills are required of drivers. In such cases, liability will be substantially strict, even though it is formally based on culpable conduct. Although it is understandable that the courts, lacking a strict liability regime at their disposal, resort to such tactics, both legal certainty and systemic coherence will suffer from the dichotomy between the wording and interpretation of the rules in question.
It follows not only that there is a continuum and no clear demarcation between fault-based liability and strict liability, but also that the label used to classify liability is not necessarily decisive. Although fault-based and strict liability can be clearly identified as, on the one hand, areas where blameworthy conduct justifies liability and, on the other hand, areas where the concept of risk or danger is decisive, there is a broad intermediate area where both conduct and risk play a role. Based on these observations, it is clear that there is indeed a gray area between fault-based and strict liability. Depending on which of the two aspects—conduct or risk—is more important, a given liability regime will lean more toward fault-based liability or more toward strict liability.
Gray Areas in the PETL
The European Group on Tort Law recognized these gray areas in its preparatory work and addressed them explicitly. Articles 4:201 and 4:202 include two provisions clearly focused on these areas where both culpable conduct and risk play a role. This paper focuses on Art. 4:201 PETL:
Art. 4:201. Reversal of the Burden of Proof of Fault in General
§ 1 The burden of proof of fault may be reversed based on the severity of the danger posed by the activity.
(2) The severity of the danger is determined based on the severity of the potential harm in such cases, as well as the likelihood that such harm will actually occur.
The central element of this provision is the severity of the danger posed by the activity in question. In other words, the rule allows for the reversal of the burden of proof of fault in light of the severity of the danger posed by the activity. The Principles do not include a general rule on the burden of proof, but each party must prove the facts relevant to the determination of liability. The reversal of the burden of proof regarding fault in Art. 4:201 PETL therefore means that it will be up to the defendants to prove that they acted in accordance with the required standard of conduct.
The main provision of Article 4:201 of the PETL refers to the reversal of the burden of proof regarding fault in general. The provision is general in the sense that it does not use specific cases—such as damage caused by animals or buildings—as a starting point, where such a reversal of the burden of proof can be found in various jurisdictions. Generalizing to all cases of increased danger is a step further, which can be regarded as exceptional.
Nevertheless, Article 4:201 of the PETL has a specific purpose: it is designed to allow for an increase in liability based on a high level of danger inherent in the activity from which the damage arose. It is not, however, a general rule regarding how and under what circumstances the burden of proof of fault may be reversed, nor is it a provision intended to assist plaintiffs who cannot prove their case. Difficulties in proving fault are not mentioned, and the text refers only to the severity of the danger posed by an activity. What we are therefore dealing with when we look at Art. 4:201 PETL is a substantive rule that takes into account that liability may be justified not only by culpable conduct or a certain risk, but also by a combination of both factors.
A claim for damages is justified if the conditions established by law for compensation are met. Unfortunately, it is often difficult for the court to determine what actually happened. To ensure that the judge can decide a case even if the facts remain unclear—in a situation known as non liquet—there are rules regarding the burden of proof for the facts, based on which fault can be assessed; this burden generally falls on the plaintiff. If these facts cannot be established, the judge will decide as if there were no fault. Only if the plaintiff proves fault will the defendant be held liable. The reversal of the burden of proof regarding fault therefore means that the court will rule as if fault were proven, even if there is no evidence of such fault. A defendant may therefore be held liable without their fault being proven: they may have committed a fault, which simply was not proven, or they may not have committed any fault at all but were unable to prove it.
In the event of a reversal of the burden of proof regarding fault, the risk that the facts will not be established therefore falls on the defendant. Consequently, a reversal of the burden of proof regarding fault leads to an increase in liability, since the defendant will be held liable if he has committed even potential fault. In this regard, it has been argued that the tightening of liability through the reversal of the burden of proof can only be justified if there are additional factors that warrant liability.
The factor justifying the increased liability provided for in Article 4:201 of the PETL is dangerousness. Liability under Article 4:201 is based on a combination of blameworthy conduct and dangerousness: while liability in principle requires a breach of the required standard of conduct, the presence of a danger of a certain severity justifies a reversal of the burden of proof—that is, liability for fault merely presumed on the part of the defendant.
The interesting question is clearly: what should be understood as a danger that justifies liability within the meaning of this article? The main provision of Article 4:201 of the PETL refers only to the severity of the danger, and paragraph 2 defines the severity of the potential harm and the likelihood of harm as decisive factors in determining the severity of the danger. Although these factors are commonly used to define danger, they do not provide guidance as to the required degree of danger. While this is not expressly mentioned in the provision, it must clearly be a higher level of severity than that inherent in any ordinary failure scenario. On the other hand, it will be lower than the abnormally hazardous activities regulated in Art. 5:101 PETL. However, further guidance regarding severity is lacking. This leaves open the question of under what circumstances Art. 4:201 PETL will apply.
The PETL’s starting point is fault-based liability with an objectified standard. The fault-based liability provided for in the PETL could therefore already be considered more objective than fault-based liability in systems with a subjective concept of fault. Furthermore, when assessing the standard of care, Art. 4:102(1) of the PETL establishes that “the dangerous nature of the activity” is one of the factors that must be taken into account when determining the required standard of conduct. Although we are still clearly within the core area of fault-based liability, the degree of danger has a role to play even here.
On the other hand, the PETL also includes a rule of strict liability. Originally, a general clause of strict liability for sources of high danger was envisaged, but the Group was unable to reach an agreement on that provision, which ultimately led to Art. 5:101 PETL, according to which strict liability applies only to abnormally dangerous activities that are not in common use.
Although it is clear that, in the PETL, danger is the central factor for both strict liability and the tightening of liability in gray areas, limiting the strict liability rule to the scope of abnormally dangerous activities has clearly changed the landscape. Another consequence of this limited strict liability clause is that the gray areas of the Principles now extend much further: A provision such as Art. 4:201 of the PETL could bridge the gap between fault-based liability and a standard strict liability regime. But expecting it to bridge the gap between fault-based liability, on the one hand, and strict liability for abnormally dangerous activities, on the other, is going too far.
Concluding Remarks
It is a major achievement of the Principles to embrace the idea of a continuum between fault-based liability and strict liability, building a bridge between these forms of liability through the introduction of rules that cover the gray areas. This will help achieve consistent and transparent solutions without the need for legal practices that undermine fault-based liability or strict liability.
However, upon examining how Article 4:201 of the PETL is worded, considerable problems become apparent. First, the provision could be misinterpreted as a general rule for reversing the burden of proof in cases where plaintiffs face structural difficulties in proving fault. This, however, is not something that Article 4:201 of the PETL can or should achieve.
Furthermore, and more importantly, a mere reference to the severity of the danger without any guidance as to the level of such danger that would justify a reversal of the burden of proof is problematic. Any legal change poses a challenge to legal certainty. The Principles should, therefore, at least clarify the degree of danger that justifies a reversal of the burden of proof, in particular by citing examples. As it stands, Article 4:201 of the PETL provides no guidance.
This problem is exacerbated by the fact that the Principles provide only a strict liability clause for abnormally dangerous activities. This means that the provision intended to cover areas where a combination of conduct and danger is necessary to justify liability should also apply to cases where danger alone should be sufficient. A provision that provides for a reversal of the burden of proof to address gray areas is a good idea, but it can only work when both fault-based liability and strict liability are fully covered by the system in question. While revisiting the gray area of Art. 4:201 PETL certainly makes sense, it would be essential to first remedy the incompleteness of the Principles’ rules on strict liability.
__________
- Steininger, Barbara C., Art 4:201 Petl: Revisiting the Grey Areas between Fault-Based and Strict Liability (June 9, 2023). Graz Law Working Paper No. 11-2023, Available at SSRN: here or here.