Most importantly, these principles establish that it is not relevant whether the
specificdanger or risk that materialized was actually foreseeable. It is sufficient to
establish whether by taking the particular precautionary measures the necessary
level of precaution for thegeneralrisks of the situation (as assessed through the
rules above on objective standards) has been taken.
The reader may have noticed that the rules of thumb that were formulated by the Dutch
Supreme Court are closely related to the Learned Hand formula which we encountered
before. This should not be surprising, since the issues at stake in the cellar hatch case and
the case which lead to the Learned Hand formula are similar in that they require the
formulation of standards for behavior (duties of care) where explicitly formulated rules
are lacking.6.4.3 Intermezzo: Law and Efficiency
We have seen that in tort law cases it is often necessary to determine whether the
behavior of a person was—according to the common law approach—a breach of
duty or—under the civil law approach—unlawful. Often there is no written law to
answer this question, and then a legal decision maker must formulate the appropri-
ate standard for behavior himself. Damage-causing behavior can be qualified as a
breach of duty or as unlawful because it violated such an unwritten standard. The
question then becomes what these unwritten standards for behavior are. How can
we establish which behavior counts as a breach of duty or as unlawful if there is no
basis for it in written law?
Ex PostIn general, there are two different ways to approach this question. One is
to establish whether the damage-creating behavior was wrong in such a way that
this justifies the imposition of liability on the person who caused the damage. A
judge would consider this question after the damage was brought about, in light of
all available information. This determination of liability only looks back, at the
facts as they actually occurred, in order to establishfor this particular casewhether
the damage should be shifted from the victim who suffered them in the first place to
the tortfeasor who caused them. This is called “ex postdetermination”, because it is
done after the damage-causing facts and—which is more important—only with an
eye to the damages as they actually occurred (“post” is Latin for “after”).
On his way to the men’s room, Mr. Duchateau fell through the open cellar hatch, despite the
crates next to the door, and had to be taken to hospital. Is Mr. Sjouwerman liable for the
damages of Mr. Duchateau? On anex postdetermination it is possible to look at all the facts
of this particular case, such as whether Mr. Sjouwerman could or should have known that
the man’s room was in the same corridor as the cellar hatch, whether Mr. Duchateau was
drunk and whether sober persons were likely to fall through the open hatch,...etc. All these
factors may play a role in determining whether Mr. Sjouwerman should have been more
careful, and whether his behavior was unlawful in the light of the thus established standard
of care.6 Tort Law 111