Abstract
This article explains the Dutch theory of partial liability and why the application of this theory benefited the plaintiffs in the case of Mothers of Srebrenica from a tort law perspective. Partial liability is a theory under Dutch law to redeem causal uncertainties, and therefore functions as an exception to the main rule of sufficient degree of proof of a condicio sine qua non (CSQN) between the wrong and the damage, justified by legal justice and reasonableness. Loss of a chance is one variation of partial liability and was applied in the case Mothers of Srebrenica. The theory of lost chance essentially makes it possible to establish liability to a proportion, notwithstanding the causal uncertainty between the wrong and the original damage which would have resulted in a denial of the claim under tort law.
Highlights
In July 1995, thousands of Bosnian Muslim males (‘Bosniac males’) were killed by Bosnian Serb forces in the Srebrenica genocide
Partial liability is a theory under Dutch law to redeem causal uncertainties, and functions as an exception to the main rule of sufficient degree of proof of a condicio sine qua non (CSQN) between the wrong and the damage, justified by legal justice and reasonableness
The aim of this article has been to explain the Dutch theory of partial liability and why the application of this theory has benefited the plaintiffs from a tort law perspective
Summary
The step is to navigate through the different instruments under Dutch law to redeem causal uncertainty, of which partial liability is one example. If the plaintiff claims compensation for the loss of a chance, he claims a fundamentally different type of damage as compared to a claim based on the actual consequences of the wrong.39 Sieburgh argued that this does not exclude the possibility that proportional liability and the loss of a chance can be applied in the same cases.. In other words, when applying the rule of the loss of a chance, a court does not have to first consider how applying this rule is justified according to the rationale of the norm which is breached, the nature of the wrongful act, and the nature of the damage suffered.48 The rationale of this difference is, according to the Supreme Court, that the CSQN between the lost chance and the wrong can be determined in conformity with the general rules of the law of evidence.. One asks the question of whether damage exists, because it is uncertain whether, without the wrong, the very same outcome would have occurred. A rhetorical question, which I tend to raise, can here be raised as to how a distinction between the scope of application of the theory of proportional liability and that of the loss of a chance can be justified from the perspective of these argumentations.
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