4.2 The indirect influence of the rule

The effect the rule has on causality and the application of loss of a chance is direct in that it allows for a clear delineation of the remedy on the basis of the purpose of the rule alone. In many instances, however, judges feel the need to modify their judgments in order to achieve fair and reasonable results. There are several instruments that allow them to do so and the existence of these instruments is indispensable, as real life does not always conform to the general rules that have been drawn up in the past. The problem with that approach is, however, that the application of this doctrine decreases formal legal certainty both narrowly defined (i.e. regarding outcomes) and broadly defined (i.e. regarding decision making process). Although the use of standards of reasonableness and fairness is antithetical to the former type of certainty, the latter is not inevitably lost. Using the purpose of the rule can actually help structure the debate as to how these instruments are to be applied in a given case, thus structuring the debate about them.

A ‘reversal of the burden of proof’ – or more accurately: an assumption of causality – is available in cases where (a) the defendant violated a rule that protected against specifically defined damage and (b) those losses materialise after the violation.1 This rule is seen as a fixed judgment of reasonableness and fairness the judge is obligated to apply.2 What should be apparent from these requirements is that it is the purpose of the rule that dictates its scope of application. And rightly so. A rule that exists for the very purpose of protecting against a very specific type of damage places a responsibility on the addressee that is incompatible with shifting the negative consequences of uncertainty to the – often less knowledgeable – claimant. This is a situation where not only the real but also the normative facts speak too much for themselves to allow for this simple defence. Of course, if the defendant proves that in fact there is no causal link between her tort and the loss that picture changes, but the addressee of such a specific rule is the more appropriate party to bear the burdens of uncertainties.

The actual proportional liability could be deployed along similar lines. This doctrine allows for a division of responsibility in cases where it is not entirely clear whether the tort or some other circumstance caused the loss and both awarding as well as rejecting the claim seems unduly harsh. This doctrine is firmly rooted in the principles of reasonableness and fairness and – as such – is often criticised for being unpredictable. The rule might offer some guidance as to when its application is appropriate. For instance, where a rule does not so much protect against a specific type of damage but it still entails a high degree of responsibility, it seems that it is easier to conclude that the requirements for application have been met. This influence is very indirect and ultimately it will be up to the judge to decide whether application in a given case is appropriate, but the rule can at least help to identify those cases where the application is more appropriate than in others.

Finally, the ‘normative causation’ or ‘doctrine of reasonable attribution’ can benefit from a norm-oriented approach. This doctrine allows a judge to tailor the amount of damages to the particularities of the individual case. Factors to be taken into account include the type of rule, the degree of fault, the type of loss, the remoteness of the loss etc.3 One of the criticisms against this doctrine is that it is not always clear which factors will be decisive in a given case. Using the rule as a guiding light may clarify the application of this doctrine somewhat. A good example is Versluis/Ziekenzorg.4 In that case, a father suffered an emotional and physical breakdown after the treatment of his daughter. He claimed compensation from the hospital because of the non-transparent communication of the doctors about her treatment. This type of loss (i.e. personal injury) generally justifies a more lenient attitude towards finding a causal link between the tort and the loss, yet the Supreme Court denied his claim. Although that may seem odd, it is actually very understandable from the perspective of the purpose of the rule. The rule that requires a doctor to communicate transparently is mainly directed at the protection of patient, but it does not impose on her a responsibility for the physical wellbeing of the patient’s parent. Because the rule does not extend existence of a causal link. Had the rule protected against this type of personal injury, then, of course, a more lenient approach would have been warranted.

These three instances show a light and indirect influence of the rule on fashioning a remedy. Because of the necessity of tailor-made judgements this influence does not necessarily enhance the predictability of the outcome, but it does help structure the debate on the application of these instruments. By sourcing the normative information required for making a decision in a particular case from the substantive rule that underlies the claim, the parties are given clear instructions on what to focus on. Furthermore, diligent coordination of rule and remedy ensures that the division of responsibilities that is encompassed in the substantive rules is not unjustifiably altered at the remedial stage.