Deviations from the principles of the burden of proof in tort law
PhD student: Dr W. Vandenbussche
Promotors: Mrs Prof I. Samoy, Prof B. Allemeersch
Duration: 1/9/2012 - 31/8/2016
PhD defence: Leuven, 24/5/2017
The project focuses on deviations from the principles of the burden of proof in tort law. It departs from the observation of two actual problems in the administration of evidence. Firstly, it can be alleged that a party injured by a tortious act finds himself confronted with a severe burden of proof (he has to prove fault, damage and causation), which can provoke serious difficulties and even situations of evidence need. How do you demonstrate that a doctor failed in his duty of care during a medical surgery? Or that the government committed a wrongful act in the dismantlement of a financial institution? Secondly, the administration of evidence of a defending party can also be problematic in situations in which he has to prove force majeure, a fault of the victim or an act of a third party. The existing deviations from the principles of the burden of proof, which are intended to meet those evidential problems, take place in a very diverse and fragmented way. They are applied by different actors (legislator, courts and parties) and in different stages of the administration of evidence, that there is no consistency in what parties actually have to prove in order to be put in the right. Therefore, the main research question of this project is: How can deviations from the principles of the burden of proof be organised in a more consistent way in tort law? After analysing the standard application of the rules on the burden of proof in tort law, the research describes in a clear and structured way the existing deviations in Belgium and other legal systems under study (the Netherlands, France, Germany and Switzerland). It also examines the background of and legal reasons (not) to deviate from the principles on the burden of proof. Furthermore, the study aims to design a new consistent normative framework, based on general criteria, determining how and to what extent each of the actors (legislator, courts and parties) could interfere in the administration of evidence.