Burden of proving fulfilment of safety obligations in the event of a traffic accident on a motorway caused by animals crossing the road
Burden of proof
Right to reparation for damages
RULING Nº 596/2009
18 of November of 2009
The right to reparation for damages – be it for a breach of consumer rights, or for a failure to fulfil obligations arising from a contract, or for a breach of so-called “absolute” rights, or even for acts which, albeit lawful, cause damage to someone else – presupposes that the legislative authorities take a position both as to whether or not there has to be fault in relation to the fact that caused the damage, and, on a secondary level, as to whom the burden of proof in this respect should be laid on.
Even though in some cases the right to reparation for damages suffered on motorways may partially be founded on a third party’s right to property, reasons involving safety and the protection of other rights that are recognised by the Constitution – the rights to life, to physical integrity, and to the protection of health, for example – are always sufficient justification for the legislative option to place the burden of proof in relation to the damaging fact on whoever is responsible for fulfilling a legal obligation to make concrete provision for safe conditions for road traffic.
The burden of proving that they have fulfilled their safety obligations which is laid on motorway concession-holders requires them to show that they have acted without fault in relation to whatever caused the damage. It is not enough for them to demonstrate that they have generically fulfilled those obligations; they must prove that they have done so concretely in the case in question.
The subjection of motorway concession-holders to this burden of proof in relation to their concrete fulfilment of their road and traffic safety obligations does not breach the right of private economic enterprise.
The object of this appeal was a rule contained in the Law that defines a number of rights pertaining to users of roads which are classified as concessionary motorways, primary routes (IPs) and supplementary routes (ICs), when interpreted such that “in the event of a traffic accident on a motorway caused by animals crossing the road, the burden of proving fulfilment of his safety obligations is placed on the concession-holder, who can only avoid this presumption if he demonstrates that the animal’s intrusion onto the highway is in no way attributable to him and is attributable to someone else; and that he must positively establish what concrete event – an event which must not fall within the universe of his moral responsibilities – prevented him from fulfilling those obligations”.
The incident in question was a traffic accident in which a fox intruded onto the motorway lane in which the driver was travelling, because the protective fencing was not completely intact and contained a hole at the place of the accident.
The appellant alleged: that it carried out periodic inspections of the wire fencing along the motorway and immediately repaired any anomaly it detected; that on the day of the accident it was not foreseeable that the fencing would be damaged, all the more so because during the inspection which had taken place shortly before the accident occurred, the fence had been in good condition, and only the fact that the fence had been vandalised had caused it to be damaged; and that it, the appellant, was therefore not guilty of any fault in the occurrence of the accident.
The Constitutional Court considered that the imposition of the burden to prove fulfilment of the safety obligations applicable to road traffic on motorways is not contrary to the rules of fair process enshrined in the Constitution. The Court said that there was no suggestion that the legislative authorities’ option to place this burden on the party that finds itself in the best position to, in advance, obtain the material means or instruments with the ability to prove the facts (both because of its material domination of the motorways and the appropriate equipment and infrastructure resources for ensuring added safety for road traffic, and because of its economic capacity to make use of those resources), was in any way lacking in sufficient material grounds.
The Court said that similarly, unlike other roads, the type of services/goods offered by the providers of motorways presupposes the existence of high and special levels of safety which, quite apart from anything else, are reflected in the design, construction, maintenance and operation of such highways to extremely demanding material and normative standards, and that the use of motorways is subject to standardised terms and payment of a fee (notwithstanding the fact that the state pays this fee for use of the SCUT dual carriageways). In the light of this the Court felt that it is not possible to consider that it in any way constitutes a breach of the principle of proportionality to place on a motorway concession-holder the burden of demonstrating that it has concretely, and in relation to each user, fulfilled the safety obligation whose presupposed real existence is said to be a key reason why a large number of consumers opt to use the motorways.
Inasmuch as the establishment in law of this burden of proof does not constitute an interference in the field of the stipulation of concrete contractual relations, is it also not possible to argue that it causes any abnormal and unpredictable disturbance to the habitual prediction of risks that the parties weigh up before they decide to enter into a contractual bond, such that one might consider that it intolerably affects the autonomy of will which is presupposed by the right to civil capacity and to the free development of personality.
Given that we are in the presence of special economic activities that generate high risks of damage to third-party property and rights, which are often innate in the type of services/goods on offer, it appears predictable that the legislative authorities might subject this concrete activity to special liability rules. This is especially true where the activity undertaken under a public concession scheme is concerned, because it may result in the state being left with the emergent responsibility of dealing with the damaging consequences for the users of the services/goods in question, particularly in terms of fulfilment of the duties to provide health and social security services. As such, the argument that there is a breach of the principle of the protection of trust also fails.
The Constitutional Court also declined to uphold the appellant’s arguments that this rule breaches the right of private economic enterprise and the right to private property, both of which are enshrined in the Constitution. The Constitution expressly recognises the right of private economic enterprise as a fundamental right, but not as an absolute right. This means that it must be exercised “within the overall frameworks laid down by the Constitution and the law and with regard for the general interest”; and the Constitution also establishes the precept that “Consumers have the right to the good quality of the goods and services consumed, […] to the protection of […] safety and their economic interests, and to reparation for damages”.
The Court consequently held that the rule before it was not unconstitutional.
Ruling no. 597/09, which bears the same date and was issued by the same Section of the Constitutional Court, but was drawn up by a different rapporteur, addresses the same question of constitutionality and complements the argumentation set out in the present Ruling.