ABSTRACT
The differences of fact situation, and the co-habitation of rights and wrongs, within a single category certainly endows tort with an apparent flexibility, but this flexibility is misleading because, in truth, tort plays host to two quite different kinds of reasoning processes each from a different stage of development. On the one hand, there are the strict liability cases whose reasoning is located in a descriptive stage – that is to say, liability is determined by the descriptive form of the facts.61 On the other hand, there are the fault cases founded not on the pattern of facts as such (although such a pattern might in truth be relevant when it comes to establishing duty of care),62 but upon a cause of action (culpa) which can be seen either as an inductive or a deductive law. As Von Jhering put it, ‘[i]t is not the occurrence of harm which obliges one to make compensation, but fault’, and he deemed this ‘as simple as the chemical fact that what burns is not the light but the oxygen in the air’.63 The existence of the descriptive and the inductive/deductive stages of reasoning within a single category (cf Chapter 14) has created an imbalance in that the fault principle always appears more progressive than the strict liability patterns.64 In some situations, this may be a good thing, but in others the fault principle itself belongs, perhaps, to a bygone age. Thus, in Dutch civil law, a very flexible approach towards the categorisation of liability allows one to transcend the principles of fault and strict liability by adopting the concept of reasonableness when it comes to the choice of the legislation imposing no-fault liability. The specific fact situation, taking into account all interests concerned (and, especially, insurance), plays an important role in determining whether liability exists. In English law, this movement towards social reasonableness is happening only in a very negative sense. Some defendants are being isolated from liability even when they have caused harm through unlawful or careless acts on the basis that it is unreasonable to impose liability (although this seems to be changing as a result of the Human Rights Act 1998).65
