Voorzorgverplichtingen: Over aansprakelijkheidsrechtelijke normstelling voor onzekere risico's

Abstract

Precautionary Duties in Tort Law Uncertain Risks The introduction, development, and application of technology is frequently accompanied by uncertain health risks. For example, natural scientific insights into the characteristics of certain nanoparticles give cause for concern about the possible negative health effects for consumers and workers after exposure to these particles. However, scientists cannot draw decisive conclusions about the validity of these concerns. In this situation of an uncertain risk, the question arises whether or not an operator (e.g. a producer or employer) has to take precautions. Tort Law and Uncertain Risks Traditionally, governments determine the legal responsibilities for operators that engage in uncertain risky behaviour. However, in the context of uncertain risks, governments face considerable difficulties in adapting (new) public laws. As a reaction to the (alleged) shortcomings of traditional regulation, legal scholars and legal practitioners pay growing attention to tort law’s potential as an instrument to set standards for uncertain risks. More specifically, they focus on the general negligence rule. The general negligence rule provides a standard of behaviour established by unwritten law for the protection of others against an unreasonable risk of harm. Precautionary Duties on the basis of the Negligence Rule This study first addresses the question of how a civil law court might set the required standard of care for uncertain risks on the basis of the general negligence rule and, more specifically, how several scientific uncertainties have to be taken into account in applying the negligence rule. An important finding of this study is that on the basis of Dutch unwritten tort law, an actor has to show proper circumspection with respect to the interests of others and, more specifically, to protect others against an unreasonable possibility of harm, even if this possibility is scientifically uncertain. Unwritten law serves as a foundation for the existence of precautionary duties in tort law. The content of a precautionary duty differs per (combination of) the location and the cause of scientific uncertainty. Most uncertainties fall under the general negligence rule and therefore are no valid reason for inaction. Practical Effects of the Application of Tort Law to Uncertain Risks Second, this study addresses the potential practical effects that the application of the negligence rule to uncertain risks potentially has on the daily business operations of operators that are confronted with an uncertain risk. Whereas, in practice, several factors might create a preference for passivity on the side of operators (such as scientific uncertainties about a risk, economic interests and a lack of social and political attention to an uncertain risk problem), most of these factors are legally not a valid reason for inaction. Therefore, the application of tort law to uncertain risks implies that operators, legally, have to be more precautious than they tend to be in practice.