Country:

Netherlands

Court:

Ktg. Zwolle 4 July 2000, Prg. 2001, 5699 (Ice cream)

Ktg. Zwolle 5 December 2000, Prg. 2001, 5699 (Ice cream)

Topic:

Proof of causation

Article:

Art. 4

Facts:

Ms Boerman bought an ice-cream at Alberto's Snackcounter. It was an ice cream, produced and prepacked by Motta. After eating the ice cream Ms Boerman thought to have contracted paratyphus. She suffered damage for which she held Alberto liable. Experts had concluded that a number of ice creams which were sold by Alberto were contaminated with salmonella. Paratyphus can be caused by the salmonella microbe, more specifically by the salmonella paratyphi. In this case there is an incubation period of 7-20 days and Ms Boerman got ill only two days after eating the ice. The salmonella enteritidis has a shorter incubation period and can cause the same symptoms. This microbe was also found in the contaminated ice creams. However, the hospital had diagnosed that Ms Boerman was infected by a salmonella microbe but it had not made a more specific diagnosis. So, although it was likely that Ms Boerman had got ill as a consequence of eating the ice cream of Alberto, this was not beyond doubt.

Legal question:

Which facts are to be proven by the victim as regards the causal relationship between defect and damage?

Decision:

The judge deemed it beyond reasonable doubt that Ms Boerman had bought one of the contaminated ice creams. This was sufficient to conclude that there was a breach of contract by Alberto. As regards the causal connection between this breach of contract and the damage of Ms Boerman the judge decided in accordance with the case law of the Hoge Raad, that it was up to Alberto to prove that Ms Boerman would have suffered the same damage if she would not have eaten the ice cream.

Comments:

Since Alberto was not the producer of the ice cream, this is not a genuine product liability case but the causation-issue that raised could also have risen in a claim against the producer.

The judge referred to the so-called 'reversal-rule' of the Hoge Raad. This rule determines under which circumstances the burden of proof regarding causation can be reversed [See about this 'omkeringsregel': HR 29 November 2002 (TFS/NS), RvdW 2002, 190 and HR 29 November 2002 (Kastelijn/Achtkarspelen), RvdW 2002, 191.] The plaintiff has to prove which risk has been created by the defendant and that specifically that risk has materialised. If these requirements are met, the burden of proof with regard to causation will be reversed. This means that the defendant has to prove that there is no causal connection between the breach of duty and the damage. This reversal-rule does not apply if the facts of the case are unclear and if it is not plausible or likely that the claimed damage has been caused by the breach of duty.

This reversal of the burden of proof resembles the so called McGhee-test by Lord Wilberforce. He said: 'It is a sound principle that where a person has, by breach of duty of care, created a risk, and injury occurs within the area of that risk, the loss should be borne by him unless he shows that it had some other cause.' [McGhee v. National Coal Board [1973] 1 WLR 1 (HL)]. As a general rule this statement has been rejected in Wilsher v. Essex Area Health Authority [1988] AC 1074 (HL), but for instance in Fairchild v. Glenhaven Funeral Services Ltd. & Others [2002] 3 All ER 305 the rule has been applied with regard to liability for indivisible diseases.

A comparable rule applies in German law with regard to the so-called Verkehrspflichten (duties of care). This rule holds that if the damage lays within the scope of protection of the duty of care, there is a rebuttable presumption that there is causation between the breach of duty and the damage (Anscheinsbeweis).

So, although the concept of rebuttable presumption is well-known, the question is whether (and if so, how) this concept will be applied in cases of product liability to which the Directive is applicable. In most legal systems the courts are also entitled to shift the burden of proof from the plaintiff to the defendant. This is not as a rule but as a possibility the courts are allowed to use in the established circumstances of the case. In Dutch law this follows from art. 150 Civil Procedure Act (Wetboek van Burgerlijke Rechtsvordering).