In its decisions of 2 June 2017 (ECLI:NL:HR:2017:1008) and 9 June 2017 (ECLI:NL:HR:2017:1053), the Dutch Supreme Court reconfirmed its case law on causation, the condicio sine qua non test and the so-called "reversal" rule in the law of evidence pertaining to this test. Although strictly speaking, these decisions might not bring much news, they show that carrying out the condicio sine qua non test is not always straightforward. In addition, these decisions show the importance of clearly keeping in mind the facts and norms constituting the unlawfulness or non-performance at hand.
The "reversal" rule in the law of evidence
In its case law on causation, the Dutch Supreme Court has developed a law of evidence "rule" of its own: the so-called "reversal" rule. Under this rule, if certain requirements are met, a causal link between the non-performance or the unlawful act of the claimant and the damage of the defendant is deemed present unless the defendant makes a plausible case that the damage would also have arisen without his non-performance or unlawful act. The name "reversal" rule is therefore not entirely accurate, as this rule does not truly reverse the burden of proof of causation. It merely states a rebuttable presumption of the existence of a causal link. Nevertheless, "reversal" rule is how it is known. The requirements for the application of this rule are twofold. First, the defendant should have violated a norm which aims to protect against a "specific danger" of damage. Secondly, the claimant should make a plausible case – also if this is contested by the defendant – that in the case at hand the "(specific) danger" the norm aims to protect against has manifested itself.
Radio Dabanga and an alleged forced flight from Sudan
In its decision of 2 June 2017 (ECLI:NL:HR:2017:1008), the Dutch Supreme Court reconfirmed this "reversal" rule and the requirements for its application. A journalist, previously working in Sudan, sued his employer, a foundation running Radio Dabanga, covering events in Sudan. Radio Dabanga operated from the Netherlands, broadcasting reports on the conflict in Darfur. These reports were secretly recorded by the journalist in Sudan and sent via the internet to the Radio Dabanga offices in the Netherlands. In the proceedings against the foundation, the journalist argued that he had been forced to flee Sudan after Sudanese security services had performed a raid on an NGO's office in Khartoum, Sudan's capital, in which the foundation had also opened a room. According to the journalist, the foundation had acted negligently by opening this room and keeping documents there. From these documents, the Sudanese security services could have deduced that the journalist worked for Radio Dabanga, the journalist argued.
"Reversal" rule not applicable
The Court of Appeal rejected the journalist's claim for damages. One of the reasons was that the journalist had not sufficiently substantiated a causal link between opening the room in the Khartoum offices and his alleged forced flight from Sudan. The Dutch Supreme Court upheld this decision, pointing to the fact that, among other things, the journalist did not give a sufficient factual explanation for the time lapse between the raid and his flight (being about two months). In addition, the Supreme Court rejected the journalist's complaint that the Court of Appeal should have applied the "reversal" rule. The Supreme Court did not elaborate on this rejection, but merely found that the second requirement for the application of the reversal had not been met. It had not been established that the specific danger, the alleged violated norm aims to protect against, being "danger of prosecution", had manifested itself. For that reason alone, the "reversal" rule was not applicable. The Supreme Court did not put into words which norm the foundation had allegedly violated in this case.
Scope of the "reversal" rule
From this restraint of the Dutch Supreme Court, one could perhaps deduce that it decided to stick to its existing case law on the "reversal" rule, limiting its application in fact to cases about the violation of established traffic or safety norms. Another interpretation could be that the Supreme Court was not willing to elaborate any further than strictly necessary on the scope of the "reversal" rule, because the facts in this case were simply too vague, as suggested in the Advocate-General's conclusion (ECLI:NL:PHA:2017:106). The alleged violated norm was a norm of unwritten law, to be defined in view of the facts. Therefore, if the facts are unclear, it is difficult to define the alleged violated norm.
Read about the Dutch Supreme Court's decision of 9 June 2017 (ECLI:NL:HR:2017:1053) on the condicio sine qua non test in PART I of this blog.