¿PUEDEN DECLARARSE RESPONSABILIDADES POR DAÑOS SIN LA PRUEBA DEL NEXO CAUSAL?

(Debate en torno a la teoría de la pérdida de oportunidad)

Abstract

Faced by the probative difficulties around causal links in the case of supposed civil liability, Law demands that the weight of uncertainty fall to just one of the parties: to the (possible) injuring party, when the judge lowers normal probative standards and affirms a doubtful causal link: or to the victim, when the judicial body keeps standards and rejects a causal link, and so any liability. It is a case of “all or nothing”. Th e loss of chance approach changes this, distributing the burden of causal uncertainty between the two parties involved; the injuring party is only liable in proportion to the likelihood of being the perpetrator of the impairment; correspondingly, the victim receives compensation according to the likelihood of not having suffered if it had not been for the harmful act. Thus, it offers a balanced solution that seeks to respond to a sense of justice that abhors the acquittal of the (possible) injuring party due to probative difficulties, but also the threat of having to make good damages not in fact caused by them.
Marina Gascón Abellán, Professor of Philosophy of Law, and Luis Medina Alcoz, Professor of Administrative Law, debate on the merits of that solution, used with increasing frequency though not very thoroughly) by our judges and courts. Th e former turns to evidence theory and the later to causation theory. For the former the doctrine of loss of chance does not imply any significant change in the traditional causal approach; it is justified simply by assuming that judicial knowledge of the facts should be based on reasoned judgements of likelihood and by turning to the concept of the rebuttable presumption of causation. For the latter, this doctrine implies a partial correction of traditional causal approaches resulting in a complication of causal imputation systems; along with “all or none”, based on the affirmation or denial of the etiological link, we find “not all nor nothing”, based on the affirmation of what are only possible causalities.