CYIL vol. 8 (2017)

TOMÁŠ HOLČAPEK CYIL 8 ȍ2017Ȏ an issue of liability for lost chance may arise. But as we have seen above, it might well be treated differently under French law as opposed to German law. As the abovementioned EU directive on patients’ rights does not deal with this issue, we may turn to the relevant regulation on applicable law, in this case that applicable to contractual regulations, i.e. Rome I regulation. 25 Assuming there was no choice of law by the parties, the most suitable provision is its Article 4(1) (b), as medical care will be usually viewed as a kind of service. The contract would then be governed by the law of the country where the service provider has their habitual residence. In our example of a French patient travelling to Germany, German law would apply under Rome I regulation. 26 Since German law does not recognise lost chance as a separate kind of damage, the patient could not claim compensation for it but would have to rely on the general principles of civil liability. If the French patient in our example travelled to the United Kingdom instead of Germany, the determination of applicable law could influence not merely whether the doctrine of loss of chance would be recognised but also the standard of proof required for the claimant to make the case. As the United Kingdom utilises the concept of proof on the balance of probabilities, selecting or determining English law as the applicable one would disallow claiming compensation for lost chance (as the English understanding views it basically as a matter of proof of causation) but, on the other hand, lower the burden of proof to mere balance of probabilities as compared with the French law’s much stricter standard. If the parties agreed on French law as the governing one, it would open the door to claiming compensation for loss of chance, 27 but it might at the same time lead to the application of French law’s stricter rules of proof, overriding the otherwise applicable lex fori. 28 The latter assertion is however certainly debatable, as the regulation mentions expressly just the burden of proof but not standard of proof. 29 Theoretically, an English court could accept French law as the one governing substantive issues (i.e. allowing to claim for loss of chance) but nevertheless apply a common law standard of evaluation of evidence, i.e. that the claim should be proved merely on the balance of probabilities, producing a rather strange result of double alleviation of the claimant’s burden. The questions of distinguishing between substantive and procedural issues (procedural ones being usually governed by lex fori ) are rather complicated and we have but touched upon them. 30 Some healthcare is provided outside the scope of a contractual relationship. If a Czech tourist in Paris is run over by a car and carried to a hospital which fails to provide proper care and chances of full recovery are decreased e.g. from 70% to 30%, it may be highly relevant which law is applicable for non-contractual obligation to compensate harm suffered 25 Regulation of the European Parliament and of the Council (EC) No. 593/2008 on the law applicable to contractual obligations. 26 Leaving aside for simplicity that under Article 6 of the regulation, law of the country of the consumer’s residence might govern the case in some circumstances. 27 Under Article 12(1) (c) of the regulation, the governing law determines the consequences of breach of obligations. 28 Cf. Article 18(1) of the regulation. 29 I.e. the required level of persuasiveness of evidence. Cf. Report on the Convention on the law applicable to contractual obligations , published in the Official Journal of the European Communities No. C 282 on 31 October 1980, p. 36, which discusses the question of burden of proof but does not bring up standard of proof at all. 30 Cf. BĚLOHLÁVEK, Alexander J., Římská úmluva a Nařízení Řím I, Komentář [ Rome Convention and Rome I Regulation. Commentary ]. C.H. Beck, Praha 2009, pp. 1641ff.

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