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BY 4.0 license Open Access Published by De Gruyter September 15, 2021

DA van der Kooij, Relativiteit, causaliteit en toerekening van schade [Scope of Duty, Causation and Remoteness] (Deventer, Wolters Kluwer 2019). 591 pp. ISBN 978 90 13 15542 6

KJO Jansen

This doctoral thesis examines the extent of contractual, tortious and strict liability under Dutch law. It aims at the development of an overarching model for determining whether and to what extent damage caused by a breach of contract, a tortious act or an event giving rise to strict liability may be attributed to the responsible party. Although the book is written in Dutch and primarily deals with Dutch liability law, its main ideas (based on a comparison with German, English and American law) are worth mentioning here, because they shed light on different aspects of ‘the scope of liability’, an issue which is known in all European systems of tort law for its elusiveness.

Under Dutch law, the scope of liability is governed by two different, partly overlapping theories: on the one hand, the ‘principle of relativity’ (the Dutch equivalent of the German Schutz­norm theory), laid down in art 6:163 of the Dutch Civil Code (DCC), and, on the other hand, the ‘principle of reasonable attribution’ (the Dutch equivalent of the remoteness test), laid down in art 6:98 DCC. Both theories were developed simultaneously in the case law of the Dutch Supreme Court in the early twentieth century, and finally codified in the 1990s. While the principle of relativity is a tort law principle (sometimes also applied to strict liability), the principle of reasonable attribution has a wider scope, governing both contractual and tortious liability, as well as strict liability. Both theories approach the problem from different angles. According to the principle of relativity, the ‘protective scope of the violated duty’ determines the extent of liability. The principle of reasonable attribution takes the damage suffered by the claimant as a starting point. It determines the extent of liability by assessing a combination of factors, such as the nature of the liability and of the damage, as well as the foreseeability of the damage.

The author is not the first one to criticise this coexistence of two overlapping theories concerning the scope of liability. After a description of the development of the law on this subject (ch 2), he argues that the division between scope of duty (relativity) and remoteness of damage (reasonable attribution) is unnecessary and should be abandoned (ch 3). What is new is that the author links this criticism to a thoroughly elaborated proposal for a new, overarching theory: a model for determining the extent of contractual, tortious and strict liability. At the heart of this model lies the ‘protective purpose of the violated duty’, a relativity-like criterion that, according to the author, largely determines the extent of liability, both positively and negatively (p 104 f). It is interesting to note in this respect that ‘the protective purpose of the rule that has been violated’ is also one of the factors determining the ‘Scope of Liability’ according to art 3:201(e) Principles of European Tort Law (PETL).

The model elaborated by the author consists of two ‘preliminary requirements’ for establishing liability (chs 5–6) and a range of factors determining the extent of liability (chs 7–12). These factors, which make up the principal part of the book, are brought together under the heading of ‘the normative connection between the event giving rise to liability and the damage’ (pp 221 ff).

The first preliminary requirement implies that it needs to be established that the violated duty entitles the injured party to compensation at all. Usually this goes without saying, but some statutory duties, especially in the sphere of public law, may be intended only as a way to let government authorities perform a task in the public interest, and not as a basis for civil liability (pp 176 ff). This preliminary requirement corresponds to the first of the well-known post-Frankovich requirements for liability of EU member states: the violation of a rule of EU law ‘intended to confer rights on individuals’.[1] In 2013, the Dutch Supreme Court ruled that the same preliminary requirement is also part of the Dutch relativity test.[2]

The second preliminary requirement is an obvious one: the requirement of factual causation. Dutch law, like most European systems of tort law, uses the but-for test (also known as the condicio sine qua non test) to establish factual causation. From the perspective of the scope of liability, the question arises whether the causal inquiry should be focused primarily on the ‘tortious aspect’ of the defendant’s conduct, or rather on the defendant’s ‘conduct as a whole’ (pp 188 ff). The author argues, again, that the ‘protective purpose of the violated duty’ should be decisive in this conext. For example, if a motorist collides with a fallen tree while exceeding the speed limit, the resulting damage suffered by a passenger should not be regarded as a result of his exceeding the speed limit, but of the tree falling over. After all, the speed limit is not intended to protect passengers against the danger of falling trees. According to the author, this is not a matter of causation, but a matter of protective purpose (pp 204 f).

The substantive core of the model is represented by the aforementioned requirement of a sufficient ‘normative connection’ between the event giving rise to liability and the damage. This requirement is deemed to be fulfilled if the purpose of the violated duty is to protect the claimant against the kind of damage suffered by him and the way it came about. Thus, the protective purpose of the duty has a ‘foundational meaning for the scope of liability’ (pp 224 ff). The author elaborates on the question of how to establish this protective purpose, not only with regard to tortious duties and provisions of strict liability, but also with regard to contractual obligations. He proposes to use the ‘hard core’ of the protective purpose – the kind of damage typically eligible for compensation – as a reference point when assessing whether other, less obvious types of damage must be compensated (pp 232 ff).

Against this background, the author presents four ‘limits of liability’. The first limit corresponds to the protective purpose again: if (and insofar as) the damage suffered does not fit the protective purpose of the violated duty, the damage is not eligible for compensation (pp 257 ff). The second limit applies if the damage suffered could have been caused ‘in a similar but lawful manner’, for example in the case of damage-causing activities without a licence which, if applied for, would have been obtained (pp 295 ff). Thirdly, a sufficient normative connection is lacking if (in the absence of a protective purpose of the violated duty) no unwritten duty of care exists that offers protection against the damage suffered (pp 325 ff). This limit is at the same time a possible extension of liability: unwritten duties can fill a gap in the protective scope of written duties (pp 275 ff). The fourth and last limit entails that no liability exists for damage that was caused by mere coincidence rather than by the violation of a duty (pp 343 ff). This limit corresponds to the exception in art 3:201(d) PETL, regarding ‘ordinary risks of life’.

For those who have not had enough of theory building yet, the book continues with four more chapters on further limitations and extensions of liability (chs 13–16). These chapters discuss, for example, the possibility that the establishment of a right to compensation in tort unlawfully interferes with a statutory regulation, providing for a public law regime for the recovery of damages (pp 363 ff). Another ground for further limitation of liability might be that both parties have been equally at fault: the well-known in pari delicto doctrine (pp 378 ff). A particular ground for extension of liability could be that the damage was caused intentionally or recklessly (pp 495 ff).

The well-known foreseeability test is conspicuous by its absence in the model. The author argues that the foreseeability or probability of the damage cannot be used as a determining factor for the assessment of the extent of liability. In his view, foreseeability is an arbitrary concept, because it largely depends on the way in which the damage is described. Furthermore, he argues that there is no substantive justification to narrow the scope of liability merely because of the damage being unforeseeable or less foreseeable. In his view, it is not the foreseeability of the damage, but the protective purpose of the violated duty that should be decisive in this context (pp 124 ff).

I cannot quite agree with the author on this point. Certainly, the protective purpose is an important factor in determining the scope of liability, but in addition to this normative factor, causal factors may count as well. In practice, the finding that the damage was foreseeable (or not) can serve as a useful starting point for the discussion about the extent of liability. The protective purpose of the duty does not always need to be involved in this discussion, while mixing normative and causal arguments may not always benefit the clarity of legal reasoning either.[3] It seems significant in this regard that art 3:201(a) PETL puts foreseeability first as a criterion for assessing the scope of liability. The foreseeability test is also part of European Union liability law and is widely accepted in most European legal systems.[4] In Belgium, which has traditionally used a broader concept of causality, a preliminary draft for the revision of liability law now also provides for the introduction of a remoteness test, with foreseeability as its first and foremost criterion.[5]

It is interesting to compare the model developed by the author to the model that was recently presented by the UK Supreme Court in Khan v Meadows, a case concerning clinical negligence. The question was whether a doctor, who had negligently failed to warn a pregnant woman of the risk of her child suffering from haemophilia, was liable not only for the costs associated with the child’s haemophilia, but also for those associated with the child’s autism, a condition which was unrelated with his haemophilia. The Court of Appeal applied the ‘scope of duty principle’ as illustrated in SAAMCO,[6] finding the doctor liable for the costs associated with the child’s haemophilia only. The Supreme Court unanimously dismissed the appeal, holding that the doctor was liable only for losses falling within the scope of her duty of care to advise the mother on whether or not she was a carrier of the haemophilia gene. It analysed the place of the scope of duty principle within the scheme of the tort of negligence by addressing six questions in sequence: 1) the actionability question, 2) the scope of duty question, 3) the breach question, 4) the factual causation question, 5) the duty nexus question and 6) the legal responsibility question.[7]

Questions 1 and 4 correspond to the ‘preliminary requirements’ discussed by the author, whereas question 3 concerns a preliminary requirement not covered by his analysis (regarding the establishment of liability rather than its extent). Questions 2 and 5 concern the ‘normative connection between the event giving rise to liability and the damage’, the overarching principle developed by the author. While the author merges these questions into a single criterion, the Supreme Court emphasises that – at least in some cases – a distinction must be made between them. Question 6, regarding remoteness of damage, is not a separate part of the model developed by the author, but incorporated into the requirement of a ‘normative connection’ on the one hand and the separate grounds for limitation or extension of liability on the other. The foreseeability of the damage – rejected by the author as a determining factor – generally plays a significant role in applying the remoteness test, although it was not decisive in Khan v Meadows.[8]

To conclude, the author has made an impressive contribution to the ongoing debate on the extent of liability. His idea of putting the protective purpose of the violated duty at the heart of the matter – the Leit­motiv of the book – is certainly enlightening in many cases.[9] The model developed by the author illustrates that it is possible to develop an overarching principle for assessing the extent of liability, covering tortious, strict and contractual liability. It could be debated whether this model is easy to apply in practice. Personally, I would regret the abolition of the foreseeability test advocated by the author, as this criterion – imperfect and incomplete as it may be – still helps to clarify the matter in many cases. The theoretical value of the book, also from a comparative law perspective, is beyond any doubt. I hope that this brief introduction may promote the further dissemination of the author’s thoughtful ideas.

Published Online: 2021-09-15
Published in Print: 2021-09-08

© 2021 KJO Jansen, published by Walter de Gruyter GmbH, Berlin/Boston

This work is licensed under the Creative Commons Attribution 4.0 International License.