A basic characteristic of any system of tort law is that a claim for compensation will fail, if the damage is not the result of a wrongful act of the respondent. Put positively: the wrongful act has to be condicio sine qua non for the damage, to be proven by the claimant. Seven years ago, though, in a case the Dutch Supreme Court agreed to abandon the condicio sine qua non-test. It assumed liability of employer Nefalit, in proportion to the reasoned estimation of the chance that the lung cancer Karamus suffered from was caused by asbestos exposure during work (55%). Even though it could also have been caused by Karamus’ smoking habit, by a combination of asbestos and smoking, or by even other circumstances. The Supreme Court did so on the basis of fairness, given that the chance that the cancer was indeed caused by asbestos, was neither very small nor very large.
Understandably, this decision was criticized as an instance of ‘disproportional’ liability. Abandoning the condicio sine qua non-test inevitably opens the possibility that the respondent has to compensate damage he has not actually caused. In a case where it was uncertain whether investor Bourgonje would have sold his shares in time, if the bank had given sufficient warning of threatening losses, the Supreme Court responded to this criticism. The Nefalit-rule, it stated, is to be applied with ‘restraint’. Although, at the same time, it did not restrict its application to cases similar to Nefalit.
Last month, the Supreme Court again quashed a decision, in which the Court of Appeal had assumed proportional liability of 50%, on the basis of a reasoned estimation of the chance that damage was actually caused by a traffic accident. So far, so good, but the Court of Appeal had then increased this percentage by another 10%, as a fairness ‘correction’, considering among other things the severity of the injury. Such an increase, the Supreme Court declared, ‘goes further’ than would be ‘justified’ by the Nefalit-rule and is at odds with the restraint of the Bourgonje-case.
In another case, the decision of the Court of Appeal was upheld, condemning the respondent to compensate 60% of the claimant’s damage. The uncertainty here was whether the claimant would have continued his business in such a way that he would have been eligible for a favorable tax regime, had he been given a proper, instead of the actual erroneous, tax advice. The decision was upheld, however, if only because, according to the Supreme Court, the Court of Appeal had in fact not decided this case on the basis of proportional liability, but on the basis of the (related but distinctive) doctrine of ‘loss of a chance’. Therefore, it did not have to observe the restraint, prescribed in the Bourgonje-case.
It is to be welcomed that the Supreme Court affirms, in the traffic accident-case, that proportional liability is to be assumed on the basis of a reasoned estimation of chance, rather than a mere appeal to fairness. Yet this of course does not discard its potential disproportional nature. Apart from the fact that distinguishing proportional liability from related doctrines is not always so easy, as the tax advice-case shows. Neither, therefore, is the assessment of the degree of ‘restraint’ to be taken into account. Also for that reason, the question remains whether abandoning the condicio sine qua non-test for proportional liability was such a good idea in the first place.